Case: 4:03-cv-03189-RGK-uLP Document#: 126 Date Filed: u6/1612006 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father and

)

natural guardian, William M; JOHN DOE,

)

by and through his mother and natural

)

guardian, Jane Doe; HEATHER V., by and

)

through her mother and guardian, Marcia V;

)

JANE S.; KEVIN V., by and through his

)

legal guardian, Kathy V.; JENNIFER T.,

)

by and through her legal guardians, Sharon

)

and Greg T.; LESLIE H.; CATHERINE M.;

)

STEPHANIE B.; CONRAD J., by and through

)

his legal guardian, C.W. J.; CHRISTOPHER H.,

)

by and through his legal guardian, Sue H.;

)

MICHAEL it, by and through his legal guardian, )
Susan It; and on behalf of themselves and all other )

persons similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF HEALTH AND )

HUMAN SERVICES FINANCE AN]) SUPPORT, )

NEBRASKA DEPARTMENT OF HEALTH AND )

HUMANSERVICES, RICHARD NELSON,

)

in his official capacity as the Director of Nebraska )

Department of Health & Human Services Finance and )

Support; and NANCY MONTANEZ, in her official )
capacity as the Director of Nebraska Department of )

Health & Human Services;

)

)

Defendants.

)

Case No. 4:03CV3189
SECOND AMENDED COMPLAINT (CLASS ACTION)

PRELIMINARY STATEMENT I. This complaint, seeking declaratory and injunctive relief, challenges practices of the Defendants and their agents (hereinafter "Defendants") which violate provisions Section 504ofthe Rehabilitation Act of 1973,29 U.S.C. §794 (hereinafter "Section 504"), as well as declaratory and
injunctive relief as to practices of the Defendants Nelson and Montanez, in their official capacities,

Case: 4:03-cv-031 89-RGK-uLP Document #: 126 Date Filed: ud/l 6/2006 Page 2 of 31
for violations of certain provisions of the Americans with Disabilities Act (42 U.S.C. § 12101 g.), the Medical Assistance Act (hereinaflcr"Medicaid") 42 U.S.C. §1396 et seq.; and 42 U.S.C. §1983. The Plaintiffs individually named are each eligible for, desire, have applied for or have attempted to apply for home and community-based developmental disability services and supports, which are provided for under 42 U.S.C. § 1396n, and Neb. Rev. Stat. 68-1018 et seq., and their implementing regulations. However, Plaintiffs have been unable to gain access to these critical services because Defendants have unlawfully restricted flmding resulting in unlawfully long waits to receive these services, and they have established an arbitrary, invalid, and inappropriate mechanism for determining individual funding, which mechanism is fundamentally flawed and incapable of accurately assessing and determining the scope of services for recipients. In addition, by violating applicable federal Medicaid laws, Defendants' actions place the individually named
Plaintiffs, and all those who are similarly situated, at imminent risk of unnecessary
institutionalization in Intermediate Care Facilities for the Mentally Retarded (hereinaflcr "ICF/MR")
or other institutional settings in violation of the Americans With Disabilities Act and the
Rehabilitation Act of 1973. JURISDICTION AND VENUE
2. This action is authorized under 42 U.S.C. §1983 and by the Supremacy Clause of the
United States Constitution, Article 6; and as an action seeking relieffrom discrimination on the basis of disability in violation of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), and the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). This action is further authorized under 42 U.S.C. § 1983 and by the Supremacy Clause of the United States Constitution, Article VI, as an action seeking relief for a deprivation of certain rights, privileges, or immunities granted to
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Plaintiffs under the Medical Assistance Act ("Medicaid"), 42 U.S.C. §1396 et Defendants.

by the

3. This action arises under federal law and involvesdeprivations under color of state law

ofrights secured under the United States Constitution and acts of Congress, and therefore, this Court

has jurisdiction to detentine the Plaintiffs' claims pursuant to 28 U.S.C. §1331 and 1343 (a)(3).

This Court also has jurisdiction over Plaintiffs' action for declaratory relief pursuant to 28 U.S.C.
§ 2201 and Rule 57 ofthe Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202,42 U.S.C. § 1983 and Rule 65 ofthe Federal Rules of Civil Procedure.
4. Pursuant to 28 U.S.C. §1391(b), venue is proper in this Court in that Defendants

reside or are located in this judicial district, and a substantial part of the events or omissions giving rise to the claim occurred in this district.

PLAINFIFFS 5. Bill M. is a natural person and a resident ofLincoin County, Nebraska. Bill M. brings

this suit through William M., his father and guardian.

6. John Doe is a natural person and resident of Valley County, Nebraska. John Doe

brings this suit through Jane Doe, his mother and guardian.

7. Heather V. is a natural person and resident of Adams County, Nebraska. Heather V.

brings this suit through Marcia V., her mother and guardian.

8. Jane S. is a natural person and resident of Douglas County, Nebraska. 9. Kevin V. is a natural person and resident of Lancaster County, Nebraska. Kevin V.

brings this suit through Kathy V., his mother and legal guardian.

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10. Jennifer T. is a natural person andresidentofLancaster, Nebraska. Jennifer T. brings this suit through Greg and Sharon T., her parents and legal guardians.
11. Leslie H. is a natural person and resident of Douglas County, Nebraska. 12. Catherine M. is a natural person and resident of Scotts Bluff County, Nebraska. 13. Stephanie B. is a natural person and resident of Douglas County, Nebraska. 14. Conrad J. is a natural person and resident of Douglas County, Nebraska. Conrad J. brings this suit through C.W. J., his father and legal guardian. 15. Christopher H. is a natural person and resident of Hall County, Nebraska. Christopher H. brings this suit through Sue H., his mother and legal guardian. 16. Michael R. is a natural person and resident of Douglas County, Nebraska. Michael R. brings this suit through Susan R., his mother and legal guardian.
DEFENDANTS 17. Defendant Nebraska Department ofHealth and Human Services Finance and Support (hereinafter "Finance & Support") is a department of the State of Nebraska established pursuant to the NebraskaPartnership forHealth and Human Services Act, Neb. Rev. Stat. § 81-3001 et seq. The functions of Finance & Support and its powers are set forth at Neb. Rev. Stat. § 8 1-3007, § 813007.01, §81-3301 to 3307. Ofparticular relevance to the present action, Finance & Support is authorized to contract with, and act as an agent of, the federal government in matters of mutual concern, and pursuant to Neb. Rev. Stat. § 68-1019 et seq. is charged with administering and regulating the Nebraska Medical Assistance Program (i.e., Nebraska's Medicaid plan). 18. Defendant Nebraska Department of Health and Human Services (hereinafter "NDI-IHS") is a department ofthe State ofNebraska established pursuant to the Nebraska Partnership
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for Health and Human Services Act, Neb. Rev. Stat. § 81-3001 et seq. The functions of NDHHS and its powers are set forth at Neb. Rev. Stat. § 81-3007, § 81-3007.01, §81-3101 to 3108. Of particular relevance to the present action, NDHHS is authorized by Neb. Rev. Stat. § 83-1214 to carry out the authority granted to it by Finance & Support, pursuant to Neb. Rev. Stat. §68-1035.01, and NDHHS is obligated to comply with all applicable provisions of the federal and state laws governing the Nebraska Medical Assistance Plan.
19. Defendant Richard Nelson (hereinafter "Nelson"), successor of Stephen B. Curtiss, is sued in his official capacity. As the Director of Finance and Support, Nelson is bound by the duties
and responsibilities stated in Neb. Rev. Stat. § 81-3007, 81-3007.01, 81-3101 et seq., and
83-101.06, et seq., and their implementing regulations (Reissue 1999) and applicable federal and state laws and regulations. Nelson exercises overall responsibility and supervision over the formulation of policies, practices, and procedures of Finance & Support, and more specifically, the promulgation, administration, supervision, and control of the rules and regulations related to community-based services for Nebraska residents with developmental disabilities, including the Medicaid funding for the Waiver Program.
20. Defendant NancyMontanez (hereinafter "Montanez"), successor ofRonRoss, is sued
in her official capacity. As the Director of NDHHS, Montanez is bound by the duties and responsibilities stated in Neb. Rev. Stat. § 81-3007, 81-3007.01, 81-3101 et seq., and 83-101.06,
et seq., (Reissue 1999), and their implementing regulations, as well as by all applicable federal laws and regulations. Montanez exercises overall responsibility and supervision over the formulation of
policies, practices, and procedures of NDHIHS, and more specifically, the promulgation, administration, supervision, and control of the rules and regulations related to community-based
services for Nebraska residents with developmental disabilities.
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CLASS ACTION ALLEGATIONS 21. The named Plaintiffs bring this class action on their own behalf and, pursuant to Rules 23 (a)(1)-(4), (b)(l)(A), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, on behalf of a class defined as follows:
All residents of Nebraska with developmental disabilities who have requested home or community-based services and who either have had the extent of their services determined by the State's use of the "Objective Assessment Process" ("OAP") or have been placed on a wait list (the "Register of Persons with Unmet Needs") for such services. 22. Due to the practices ofNDIIHS and Finance & Support, all class members have been, or are at risk of being, placed on a wait list and waiting an unlawfully long time for services for which they are eligible, and the extent of theft home or community-based developmental disabilities services have been, or may in the future be, determined by an "objective assessment procedure" that violates applicable federal Medicaid law. As a further consequence of the State's practices with
respect to provision of developmental disability services, all class members are at risk of
unnecessarilyrestrictive placements as a means to receive appropriate services, including placements at ICFIMR facilities, nursing homes or other institutional settings, contrary to applicable law,
including without limitation, the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act. 23. The class is so numerous that joinder of all members is impracticable. Over two
thousand eight hundred individuals are eligible for Home and Community-Based Services. 24. There are questions of law and fact common to the class. Common questions of law
include, without limitation, (a) whether it is permissible under federal Medicaid law, the ADA and Section 504 forDefendants to adopt and use a practice, or practices, which fail to provide Medicaid-
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funded community-based services within a reasonable time after request of an eligible individual; (b) whether it is permissible under the Due Process Clause of the Fourteenth Amendment and federal Medicaid law to deny Medicaid-funded home or community-based services without notice and an opportunity to be heard; (c) whether it is permissible under the ADA to fail to provide individuals who are eligible for developmental disabilities services with such services in the most integrated setting appropriate to them; and (d) whether it is permissible under federal Medicaid law, the ADA, and Section 504, as well as applicable state law, for Defendants to adopt and use practices (e.g., the "OAP" as devised and implemented by Defendants) to determine the funding they will provide each eligible individual for their developmental disabilities services when such practices are arbitrary, inflexible, and fail to obtain necessary input, and when those practices routinely result in the under funding of services.
25. Common questions of fact include, without limitation, (a) whether the Defendants have adopted and use a practice which fails to provide putative class members with funds for services in a timely manner; (b) whether the Defendants have a practice which denies putative class members notice of adverse determinations and an opportunity to be heard; (c) whether the Defendants have failed to provide putative class members who are eligible for developmental disabilities services with such services in the most integrated setting appropriate to them; and (d) whether Defendants have adopted practices which are arbitrary, inflexible, exclude necessary input, and routinely result in the under funding of services.
26. The representative Plaintiffs are typical ofthe class in that the representative Plaintiffs have each been wait-listed, will be subject to the Defendants' wait list practices in connection with any future request for a change in services or new services, and they have had, or will have, the
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extent of the services they receive determined by the particular OAR Defendants have adopted and
are using.
27. The representative Plaintiffs will fairly and adequatelyprotect the interests of the class. The representative Plaintiffs have no interests in conflict with the class, and Plaintiffs have

selected qualified, experienced, competent counsel. 28. The prosecution of separate actions by individual members of the class would create
a risk of inconsistent or varying adjudications establishing incompatible rules of law for the provision of services to members of the class.
29. Defendants, theft agents, employees, predecessors, and successors in office have acted

or will act on grounds generally applicable to the class, thereby making appropriate injunctive or declaratory relief with respect to the class as a whole.
STATUTORY AN]) REGULATORY FRAMEWORK Americans with Disabilities Act and Section 504
30. On July 26, 1990, President Bush signed into law the ADA, 42 U.S.C. § 12101 et g., establishing the most important civil rights laws for persons with disabilities in our nation's

history. 31. In enacting the ADA, Congress was particularly concerned about the unnecessary
segregation and institutionalization of people with disabilities and the resulting lack of fill participation in and access to community services and activities. 42 U.S.C. § 12101(a)(2), (a)(5),

(a)(8). 32.

Title II of the ADA prohibits the Defendants Nelson and Montanez, in theft official

capacities, from discriminating against the individuals with disabilities they serve.

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33. Pursuant to Olmstead v. L.C., 527 U.S. 581, 119 S. Ct. 2176, 144 L.Ed. 2d 540 (1999), in order to comply with the requirements of the ADA, the states are obligated to adopt a

comprehensive, effective working plan for placing qualified persons with mental disabilities in less restrictive settings, and to move persons waiting for services into such services at a reasonable pace.
34. Section 504, on which the ADA is modeled, sets forth similar protections against

discrimination by parties, such as the individual and agency Defendants here, against recipients of
federal funds, including prohibiting unnecessary segregation. 29 U.S.C. § 794 et seq. State
recipients of federal funds are required to administer all programs and activities receiving such funds

in the most integrated setting appropriate to the needs of qualified disabled persons. 28 C.F.R. §

41.51(d).

The Medicaid Act

35. Medicaid is a joint state and federally funded program whose purpose is to provide medical services to low-income persons pursuant to Title XIX of the Social Security Act, and to provide rehabilitation and other services to help them attain or retain capability for independence or self care. 42 U.S.C. § 1396 et seq.
36. States are not required to participate in Medicaid. However, states choosing to

participate in the Medicaid program receive federal matching funds for theft medical assistance program. Once a state elects to participate, it must do so in accordance with the mandatory

requirements of the federal Medicaid statutes and regulations. 42 U.S.C. § 1396 et seq., 42 C.F.R.

§43Oetseq. 37. As a condition of participating in the federal Medicaid program, states must submit

to the United States Department of Health and Human Services, a state Medicaid plan that fulfills

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therequirements of the Medicaid Act and includes certain mandatory, as well as optional, Medicaid
services. 42 U.S.C. § 1396 a(a) and d(a).
38. Federal Medicaid law requires every state to offer nursing facility services. 42 U.S.C.

§* 1396 a(a)(l 0)(A); 1396 d(a)(4)(A). The state plan must also provide forhome health services for any individual who is entitled to nursing facility services. 42 U.S.C. § 1396 a(a)(10)(D).
39. Although not required to do so, states may offer ICFIMR services, as well as home

health care services, private duty nursing services, community supported living arrangements, home

and community care for functionally disabled elderly individuals, personal care services, and any medical and remedial care recognized under state law. 42 U.S.C. 1396 d(a). Once a state elects to include such optional services in its plan, however, such services become subject to all the

requirements of federal Medicaid law. 42 U.S.C. § 1396 a(a)(1). 40. In general, states must provide institutional services to all individuals who quali for

them, and Medicaid services must be fUrnished with reasonable promptness to eligible individuals. 42 U.S.C. § 1396 a(a)(8); 42 C.F.R. § 435.93(a).
41. Covered services are to be rendered by qualified providers to Medicaid-eligible

persons, and beneficiaries are to have a free choice ofqualifiedproviders. 42 U.S.C. §l396a (a)(23), 42 C.F.R. § 431.51.

42. The state makes payments directly to providers, and the provider cannot bill the beneficiary for services. Medicaid payments must be accepted as payment in full. 42 C.F.R.

§447.15. 43.

Federal law allows states to waive certain, limited Medicaid requirements in order

to enable people with disabilities to avoid institutionalization and receive Medicaid services in the

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community. 42 U.S.C. § 1396 n(c). These waivable requirements are the requirements relating to

comparability, statewideness, and eligibility standards for the medically needy. Nebraska currently

operates several programs, with the ones of particular relevance to the present suit, being the Home

and Community-Based Services Waivers for Adults with Developmental Disabilities.

44. Home and Community-Based Services are less expensive than services in an

institutional setting, and thus in addition to the requirements of the ADA and Medicaid (see

Olmstead), it is inthe state's interest to provide such services as an alternative to institutionalization.

45. A great number of individuals with disabilities can live in the community so long as

they have adequate supports and services. In addition, due to theft ties to family and friends, there

are manybenefits to developmentally disabled individuals in receiving adequate supports which will

enable them to live in the community rather than an institutional setting. Thus, it is in the interest

of many individuals with developmental disabilities to receive such community-based services as

an alternative to institutionalization.

46. 42 C.F.R. §440.230(b), promulgatedpursuantto the MedicaidAct,provides that each

service must be sufficient in amount, duration and scope to reasonably achieve its purpose. Related

to this requirement, HCFA (now the Centers for Medicare and Medicaid Services) issued the

following guidance to State Medicaid Directors in Olmstead letternumber 4, dated January 10,2001:

In exercising discretion to approve new waiver requests, we will

apply the same sufficiency concept to the entire waiver itself, L a,

whether the amount, duration, and scope of all the services offered

through the waiver (together with the State's

plan and other

services available to waiver enrollees) is sufficient to achieve the

purpose of the waiver to serve as a community alternative to

institutionalization and assure the health and welfare of the

individuals who enroll.

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an exceptionally limited service design may prevent an existing
waiver from being able to assure the health or welfare of the
individuals enrolled. Where, subsequent to a HCFA review of quality in an existing waiver, it is very clear that the waiver design renders it manifestly incapable ofresponding effectively to serious threats to the health or welfare of waiver enrollees, we would expect the State to fulfill its assurance to protect health and welfare. At page 7.
47. As indicated in the foregoing passage, a participating state is obligated to protect the
health andwelfare ofindividuals who are provided services underthe waiver. Specifically, 42 U.S.C
§1396n(c)(2)(A) provides: A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that —(A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services.
Due Process Clause of the Fourteenth Amendment & Due Process Requirements under Federal Medicaid Law
48. The due process clause ofthe Fourteenth Amendment prohibits a state from depriving a person of life, liberty or property without due process of law. Welfare benefits "are a matter of
statutory entitlement for persons qualified to receive them" and thus are constitutionally protected.
Goldberg v. Kelly, 397 U.S. 245, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970). Due process requires, at
a minimum, that persons eligible for Home and Community-Based Services be given notice and an
opportunity for a hearing upon a denial or delay in providing those services.
49. Federal Medicaid law specifically requires a participating state's medical assistance plan to "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is not acted upon with reasonable promptness." 42 U.S.C. §1396a(a)(3). See also, 42 C.F.R. § 431.200 - 431.250.
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Relevant Nebraska Law pertaining to the delivery of Home and Community-based Services 50. Pursuant to Neb. Rev. Stat. § 83-1214, NDHHS is obligated to comply with all
applicable provisions of Title XIX of the Social Security Act. Title XIX includes 42 U.S.C. §1396a, which provides for state plans for medical assistance (i.e.,Medicaid).
51. As described above, the amount, duration, and scope of all the services offered through the waiver programs (together with the state's Medicaid plan and other services available
to waiver enrollees), must be sufficient to achieve the purpose of the waiver to serve as a community alternative to institutionalization and must assure the health and welfare of the individuals who
enroll. To some extent, the purpose of particular services to individuals with developmental disabilities are suggested by the Nebraska Administrative Code. For example, with respect to day services, 205 NAC 4-017 states:
Day services provide persons with supports, services and interventions desired and needed to increase or maintain their capacity for independent functioning, self-determination,
interdependence, productivity and community integration in the Day Service environment. In addition, the intent and services of the Waiver Program, 480 NAC 2-002, states: Nebraska's waiver allows for the provision of Habilitation Services and Family Support Services to promote client independence and integration andto supportthe family. 2-002.01 Habilitation Services: An aggregate set of essential interventions, designated in an IPP,
which assist the client to develop and retain the capacity for
independence, self-care, and social and br economic functioning. 52. Neb. Rev. Stat. § 83-12020) states the intent of the Legislature that all persons with developmental disabilities shall receive services and assistance which present opportunities to
increase theft independence, productivity, and integration into the community.
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53. The determination of the type and amount of specialized supports and services to be funded through the Department for individual, eligible persons is to be made by service coordination personnel in the Local Field Office. 205 NAC 2-011.08.
TilE NAMED PLAINTIFFS 54. Bill M. is a resident of the State ofNebraska and is an individual with developmental disabilities. 55. Bill M. is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 56. Bill M. has requested home or community-based services, has been. on the State's wait list, and has had services determined by the State's administration of the OAP. In addition, Bill M. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP. 57. John Doe is a resident of the State of Nebraska and is an individual with developmental disabilities. 58. John Doe is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 59. John Doe has requested home or community-based services, has been on the State's wait list, and has had services determined by the State's administration of the OAR In addition, John Doe may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
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60. Heather V. is a resident of the State of Nebraska and is an individual with
developmental disabilities. 61. Heather V. is eligible for Medicaid, qualifies for receipt ofdevelopmental disabilities
services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
62. Heather V. has requested home or community-based services, has been on the State's wait list, and has had services determined by the State's administration of the OAP. In addition, Heather V. may in the future request different or additional home or conmiunity-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
63. Jane S. is a resident of the State ofNebraska and is an individual with developmental disabilities.
64. Jane S. is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
65. Jane S. has requested home or community-based services, has been on the State's wait list, and has had services determined by the State's administration of the OAP. In addition, Jane S. mayin the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
66. Kevin V. is a resident of the State of Nebraska and is an individual with
developmental disabilities.
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67. Kevin V. is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
68. Kevin V. has requested home or community-based services, and has had services determined by the State's administration ofthe OAP. In addition, Kevin V. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
69. Jennifer T., is a resident of the State of Nebraska and is an individual with
developmental disabilities. 70. Jennifer T. is eligible for Medicaid, qualifies for receipt of developmental disabilities
services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
71. Jennifer T. has requested home or community-based services and has had services determined by the State's administration of the OAP. In addition, Jennifer T. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
72. Leslie H. is a resident of the State of Nebraska and is an individual with
developmental disabilities. 73. Leslie H. is eligible for Medicaid, qualifies for receipt of developmental disabilities
services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
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74. Leslie H. has requested home or community-based services and has had services determined by the State's administration of the OAP. In addition, Leslie H. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
75. Catherine M. is a resident of the State of Nebraska and is an individual with
developmental disabilities. 76. Catherine M. is eligible for Medicaid, qualifies for receipt of developmental
disabilities services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
77. Catherine M. has requested home or community-based services and has had services determined by the State's administration of the OAP. In addition, Catherine M. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
78. Stephanie B. is a resident of the State of Nebraska and is an individual with
developmental disabilities.
79. Stephanie B. is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 80. Stephanie B. has requested home or community-based services and has had services
determined by the State's administration of the OAP. In addition, Stephanie B. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
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81. Conrad J. is a resident of the State of Nebraska and is an individual with
developmental disabilities. 82. Conrad J. is eligible for Medicaid, qualifies for receipt of developmental disabilities
services, and is a qualified individual with a disability under the protection of the Americans with
Disabilities Act and Section 504 ofthe Rehabilitation Act.
83. Conrad J. has requested home or community-based services and has had services determined by the State's administration of the OAP. In addition, Conrad J. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
84. Christopher H. is a resident of the State of Nebraska and is an individual with developmental disabilities. In the past, Christopher H. has been placed in institutional settings for short periods of lime because no community-based services were available.
85. Christopher H. is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the
Americans with Disabilities Act and Section 504ofthe Rehabilitation Act.
86. ChristopherH. has requested home or community-based services and has had services determined by the State's administration of the OAP. In addition, Christopher H. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
87. Micheal R. is a resident of the State of Nebraska and is an individual with
developmental disabilities.
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88. Michael R. is eligible for Medicaid, qualifies for receipt of developmental disabilities services, and is a qualified individual with a disability under the protection of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
89. Michael R. has requested home or community-based services and has had services determined by the State's administration of the OAP. In addition, Michael R. may in the future request different or additional home or community-based services, and such request would be subject to the State's practices relative to the wait list and the OAP.
FIRST CLAIM FOR RELIEF (Wait List and Insufficient Level of Service Violation of the ADA against only Defendants
Nelson and Montanez, in theft official capacities) 90. The allegations ofParagraphs 1 through 89 above are fully incorporated in Plaintiffs' first claim for relief. 91. Plaintiffs are individuals with developmental disabilities who are eligible for ICF/MR services and alternative Home and Community-Based Services. 92. Plaintiffs' treating professionals consider community-based placement to be appropriate for Plaintiffs. 93. Despite the appropriateness of community-based placement, as to only the Defendants Nelson and Montanez, in theft official capacities, such Defendants have either failed to provide funding or have used a methodology for determining fUnding that is arbitrary, inflexible, excludes necessary input, and routinely results in the systematic under funding of services. 94. Due to practices which deny funding, Defendants Nelson and Montanez, in their official capacities, have not moved individuals placed on the "waiting list," also known as the
19

Case: 4:03-cv-031 89-RGb. LP Document #: 126 Date FUed: 06/16/2006 Page 20 of 31
"register of persons with unmet needs," to community-based placements at a reasonable pace or in a reasonably timely manner.
95. Defendants Nelson and Montanez, in their official capacities, do not have a
comprehensive, effective working plan for placing Plaintiffs and other similarly situated qualified individuals in home and community-based services.
96. Defendants Nelson's and Montanez's, in their official capacities, failure to develop a sound, valid, and flexible methodology for determining funding or to provide any fbnding in a
reasonably timely manner, places individuals with developmental disabilities at risk of institutionalization, even though such individuals would be better served in a less restrictive
community setting. 97. Defendants Nelson's and Montanez's, in their official capacities, foregoing actions
and inactions constitute a violation of the ADA, 42 U.S.C. §12101 et seq., and such violation is continuing.
98. Defendants Nelson's and Montanez's, in their official capacities, violation of the ADA is causing hann to Plaintiffs and all similarly situated individuals with developmental disabilities, which harm partially can be remedied by declaring Defendants Nelson's and Montanez's, in their official capacities, actions unlawful and enjoining Defendants Nelson and Montanez, in their official capacities, from further violation of the ADA.
SECOND CLAIM FOR RELIEF (Wait List and Insufficient Level of Service Violation of the Rehabilitation Act)
99. The allegations of Paragraphs 1 through 98 above are fully incorporated in Plaintiffs' second claim for relief
20

Case: 4:03-cv-031 89-RGK-uLP Document #: 126 Date Filed: 06/16/2006 Page 21 of 31
100. Plaintiffs are "disabled individuals" under 29 U.S.C7.9§4 (i.e., Section 504 ofthe Rehabilitation Act of 1973).
101. Plaintiffs are otherwise qualified toparticipatein Nebraska's medical assistanceplan and to have the medical assistance plan pay for any ICF/MR services they might receive.
102. Nebraska's medical assistance plan receives federal funding, and TCF/MR services provided in Nebraska to the state's population of individuals with developmental disabilities are in part, paid by federal funds through the state's medical assistance plan. In addition, Home and Community-Based Services, are in part, paid by federal funds through the state's medical assistance plan.
103. Plaintiffs' treating professionals consider community-based placement to be appropriate for Plaintiffs. However, despite the appropriateness of community-based placement Defendants have either failed to provide funding or have used a methodology for determining
funding that is arbitrary, inflexible, excludes necessary input, and routinely results in the systematic under fbnding of services.
104. Defendants' failure to develop a sound, valid, and flexible methodology for determining funding or to provide any fhnding in a reasonably timely manner, places individuals with developmental disabilities at risk of institutionalization, even though such individuals would
be better served in a less restrictive community setting. 105. Defendants' foregoing actions and inactions constitute a violation of Section 504 of
the RehabilitationAct of 1973,29 U.S.C. §794, as well as 28 C.F.R. §41.51(d), and such violation is continuing.
21

Case: 4:03-cv-03189-RGK-QLP Document #: 126 Date Filed: 06/16/2006 Page 22 of 31
106. Defendants' violation of the Rehabilitation Act is causing harm to Plaintiffs and all similarly situated individuals with developmental disabilities, which harm partially can be remedied by declaring Defendants' actions unlawfUl and enjoining Defendants from further violation of the Rehabilitation Act.
THIRD CLAIM FOR RELIEF (Pursuant to 42 U.S.C. § 1983, Defendants Nelson and Montanez, in their official capacity, while acting under color of state law and theft state authority deprived Plaintiffs and the Plaintiff class of
their federally protected rights under Medicaid and the due process clause of the U.S. Constitution)
A. Denial of an Opportunity to Apply for Medical Assistance Covering ICF/MR or Community-Based Services and Failure to Furnish Assistance with Reasonable Promptness Violates the Medicaid Act.
107. The allegations of Paragraphs 1 through 89 above are fully incorporated in Plaintiffs' third claim for relief.
108. All the Plaintiffs, and other similarly situated individuals, have requested ICF/MR or Home and Community-Based Services from theft NDHHS service coordinators, and they are eligible for such services.
109. Despite their request and eligibility for such services, in many cases Plaintiffs, and other similarly situated individuals, have not been given an opportunity to apply for medical assistance which would cover such services. Specifically, Defendants Nelson and Montanez, in their official capacity, while acting under color of state law and their state authority deprived Plaintiffs and the Plaintiff class of their federally protected rights under the Medicaid Act and the due process clause of the U.S. Constitution as specifically hereinafter enumerated in ¶11110-123.
110. Plaintiffs, and other similarly situated persons, have not been furnished with medical assistance for ICF/MR or Home and Community-Based Services with reasonable promptness.
22

Case: 4:03-cv-03189-RGK-JLP Document#: 126 Date Filed: 06/16/2006 Page 23 of 31
111. Defendants Nelson's and Montanez's, a). denial of an opportunity to apply for medical assistance which would cover the services sought by Plaintiffs, and other similarly situated individuals, and b). failure to furnish Plaintiffs, and other similarly situated individuals, with medical assistance for either ICF/MR or Home and Community-Based Services with reasonable promptness are violations of 42 U.S.C. § 1396a(a)(8), and such violations are continuing.
112. Defendants Nelson's and Montanez's violations of 42 U.S.C. §1396a(a)(8) are causing harm to Plaintiffs and all similarly situated individuals with developmental disabilities, which harm partially can be remedied by declaring Defendants' actions unlawñil and enjoining Defendants from further violation of 42 U.S.C. §l396a(a)(8).
B. Failure to Provide Funding for Services Sufficient in Amount, Duration, or Scope To Fulfill the Purpose of Such Service Violates Federal Medicaid Regulations.
113. Defendants Nelson and Montanez have adopted a methodology (known as the objective assessment process or "OAP") for determining the level of funding for Home and Community-Based Services which will be provided to each recipient of such services, and this level of funding effectively determines the amount, duration and scope of the services furnished to Plaintiffs and similarly situated individuals.
114. Defendants Nelson's and Montanez's methodology results in Home and CommunityBased Services which are not sufficient in amount, duration, and scope, to reasonably achieve the purpose of such services.
115. Defendants Nelson's and Montanez's methodologyis arbitrary, inflexible, excludes necessary input, and routinely results in the under funding of services such that provided Home and
23

Case: 4:03-cv-031 89-RGK-ULP Document #: 126 Date Filed: 06/16/2006 Page 24 of 31
Community-Based Services are not sufficient in amount, duration and scope to reasonably achieve theirpurpose which violates 42 C.F.R. §440.230(b), promulgated pursuant to the Medicaid Act, and such violation is continuing.
116. Defendants Nelson's and Montanez's violation of 42 C.F.R. §440.230(b) is causing harm to Plaintiffs and all similarly situated individuals with developmental disabilities, which harm partially can be remedied by declaring Defendants' methodology unlawful and enjoining Defendants from further violation of 42 C.F.R. § 440.230(b).
C. Failure to Provide Funding for Services Sufficient in Amount, Duration and Scope to Ensure Plaintiffs Health and Safety Violates Medicaid Act.
117. Defendants Nelson and Montanez have adopted a methodology for determining the level of funding for Home and Community-Based Services which will provide to each recipient of such services, and this level of funding effectively determines the amount, duration and scope of the services furnished to Plaintiffs and similarly situated individuals.
118. Defendants Nelson's and Montanez's methodologyis arbitrary, inflexible, excludes necessary input, and routinely results in the under funding of services such that provided Home and Community-Based Services are not sufficient in amount, duration and scope to protect the health and welfare of individuals provided such services.
119. Defendants Nelson's and Montanez's failure to provide Home and CommunityBased Services sufficient in amount, duration and scope to protect the health and welfare of Plaintiffs receiving services, and all those individuals similarly situated, violates 42 U.S.C. §
13 96n(c)(2)(A) and the guidance provided to the states by the federal government in Olmstead letter number 4, dated January 10, 2001.
24

Case: 4:03-cv-03189-RGK-OLP Document#: 126 Date Filed: 06/16/2006 Page 25 of 31
120. Defendants Nelson's and Montanez's violation of 42 U.S.C. § l396n(c)(2)(A) is causing harm to Plaintiffs and all similarly situated individuals with developmental disabilities,
which harm partially can be remedied by declaring Defendants' methodology unlawful and enjoining
Defendants from further violation of of 42 U.S.C. § 1396n(e)(2)(A), and such violation is
continuing.
D. Failure to Provide Notice and a Hearing to Persons Placed on the Wait List Violates the Due Process Clause ofthe Fourteenth Amendment, the Medicaid Act.
121. When Plaintiffs applied for Home and Community-Based Services and were determined eligible for such services, many of them, and many of those similarly situated, were
informed that funds were not available for them to receive such services and they were told that they would be placed on the register ofpersons with unmet needs, also known as the wait list. At the time they were notified that funds for the services were unavailable, they were not given notice of a right to appeal such decision, nor were they afforded a hearing on the matter.
122. Defendants Nelson's and Montanez's failure to give notice of a right to appeal the decision to deny funds for services and Defendants' failure to afford a hearing on the matter to Plaintiffs and all other similarly situated individuals, violates 42 U.S.C. § 1396a(a)(3), 42 C.F.R. § 431.200-43 1.250, and the due process clause of the United States Constitution.
123. Defendants Nelson's and Montanez's violation of 42 U.S.C. §1396a(a)(3), 42
C.F.R. § § 431.200-431.250, and the due process clause ofthe United States Constitution is causing harm to Plaintiffs and all similarly situated individuals with developmental disabilities, which harm partially can be remedied by declaring Defendants' actions unlawful and enjoining Defendants from
25

Case: 4:03-cv-03189-RGK-OLP Document#: 126 Date Filed: 06/16/2006 Page 26 of 31
further violation of 42 U.S.C. §1396a(a)(3), 42 C.F.R. § 431.200 -431.250, and the due process clause of the United States Constitution.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief: A. Assume jurisdiction over this action and maintain continuing jurisdiction until Defendants are in full compliance with every Order of this Court; B. Certify this case to proceed as a class action, pursuant to Federal Rule of Civil Procedure 23(b)(2); C. Order that the named Plaintiffs mayproceed as representatives of a class of similarly situated individuals; D. Declare that Defendants Nelson's and Montanez's failure to develop a sound, valid, and appropriate methodology for determining funding or to provide any thnding in a reasonably timely manner, places individuals with developmental disabilities at risk ofinstitutionalization, even though such individuals would be better served in a less restrictive community setting, and violates the ADA, 42 U.S.C. §12101 as to only the Defendants Nelson and Montanez, in their official capacities; and to all the Defendants pursuant to Section 504 of the Rehabilitation Act of 1973,29 U.S.C. §794, and 28 C.F.R. §41.51(d), in that all the Defendants' actions and inactions impermissibly favor the provision of services in an institutional setting; E. Issue appropriate injunctive relief prohibiting Defendants from further violation of the ADA, 42 U.S.C. § 12101 as to only the Defendants Nelson and Montanez, in their official capacities; and to all the Defendants pursuant to Section 504 of the Rehabilitation Act of 1973,29 U.S.C. §794, and 28 C.F.R. §41.51(d), and compelling Defendants to:
26

Case: 4:03-cv-031 89-RGK-tJLP Document #: 126 Date Filed: 06/16/2006 Page 27 of 31

i.

Adopt practices and procedures reasonably calculated to provide all eligible

persons with developmental disability services in home and community-based

settings in a timely fashion and to avoid unnecessary institutionalization or continued

unnecessary segregation; ii. Provide funding for Rome and Community-Based Services to those on the

wait list within ninety (90) days, so long as Nebraska has available waiver slots in Adult Home and Community-Based Waiver Program; iii. Notify all individuals who are currently eligible for or who will apply for Medicaid funded long-term services of the existence of the Home and CommunityBased Waiver Program;

iv. Request, and in good faith, take all necessary action to obtain increased

waiver slots within six months from the federal government in an amount sufficient to accommodate all immediate demand for community-based services and all

additional demand anticipated over the next three years;

v. Request additional waiver slots from time to time to allow for, and anticipate,

any increased demand for Home and Community-Based Services; vi. Adopt a sound, valid methodology for properly determining payment levels for Home and Community-Based Services provided to each eligible individual which

ensures that each individual will receive a level of service appropriate to their needs;

F. Declare that (i) Defendants Nelson's and Montanez's denial to Plaintiffs, and all

similarly situated individuals, an opportunity to apply for medical assistance which would cover the

services sought by Plaintiffs, and all similarly situated individuals, and (ii) Defendants Nelson's and
Montanez's failure to furnish Plaintiffs, and all similarly situated individuals, with medical

27

Case: 4:03-cv-031 89-RGK-OLP Document #: 126 Date Filed: 66/16/2006 Page 28 of 31
assistance for either ICF/MR or Home and Community-Based Services with reasonable promptness (i.e., within 90 days), are violations of42 U.S.C. §1396a(a)(8);
0. Issue appropriate injunctive reliefprohibiting Defendants Nelson and Montanez from
further violations of 42 U.S.C. §1396a(a)(8), and compelling Defendants Nelson and Montanez to, i) adopt clear, written regulations setting forth practices, policies and procedures ensuring that all eligible individuals with developmental disabilities have the opportunity to apply for medical assistance which would éover the services they require, and ii) to furnish all eligible individuals with developmental disabilities with medical assistance for either ICF/MR or Home and CommunityBased Services within 90 days of request or application;
H. Declare that Defendants Nelson's and Montanez's methodology for determining the level of funding for Home and Community-Based Services which Defendants will provide to recipients of such services, results in Home and Community-Based Services that are not sufficient in amount, duration and scope to reasonably achieve the purpose of such service, and such methodology therefore violates 42 C.F.R. §440.230(b);
I. Issue appropriate injunctive reliefprohibiting Defendants Nelson and Montanez from further violations of 42 C.F.R. §440.230(b), and compelling Defendants to adopt asound, valid and appropriate methodology for properly determining payment levels for Home and Community-Based Services provided to eligible individuals so that eligible recipients will receive a level of service sufficient to achieve the purpose of such service;
J. Declare that Defendants Nelson's and Montanez's methodology for determining the level of funding for Home and Community-Based Services which will provide to each recipient of such services, results in Home and Community-Based Services which are not sufficient in amount,
28

Case: 4:03-cv-03189-RGK-ULP Document #: 126 Date Filed: 06/16/2006 Page 29 of 31
duration, and scope to ensure the health and safety of such recipients, and such methodology therefore violates 42 U.S.C. §1396n(c)(2)(A);
K. Issue appropriate injunctive reliefprohibitingDefendants Nelson and Montanez from further violations of 42 u.s.c. §1 396n(c)(2)(A), and compelling Defendants Nelson and Montanez to adopt a sound, valid and appropriate methodology for properly determining payment levels for Home and Community-Based Services provided to eligible individuals so that eligible recipients will receive a level of service sufficient to ensure the health and safety of such individual;
L. Declare that Defendants Nelson's and Montanez's failure to provide notice and a hearing to individuals placed on the wait list violates the due process clause of the united States Constitution, 42 U.S.C. §l396a(a)(3), 42 C.F.R. § 431.200 - 431.250.
M. Issue appropriate injunctive relief requiring Defendants Nelson and Montanez to adopt policies and procedures providing notice and a hearing to anyone denied funding for services for which they are otherwise eligible.
N. Issue such other injunctive relief as shall be necessary to enjoin Defendants from continuing to violate the individual Plaintiffs' rights to community-based services, pursuant to the the ADA and the Medicaid Act, as to only the Defendants Nelson and Montanez, in their official capacities; and to all the Defendants pursuant to Section 504 of the Rehabilitation Act.
0. Award Plaintiffs any additional relief that this Court may deem just, proper, and
equitable; and P. Award Plaintiffs reasonable litigation expenses, costs, and attorneys' fees, pursuant
to 29 U.S.C. § 794a(b), 42 U.S.C. § 1988, and 42 U.S.C. § 12205.
29

Case: 4:03-cv-03189-RGK-ULP Document#: 126 Date Filed: 06/16/2006 Page 30 of 31
PLACE OF TRIAL REQUESTED: LINCOLN, NEBRASKA
This 16th dayofJune, 2006.
Respectfully submitted,
BILL M., by and through his lather and natural guardian, William M; JOHN DOE, by and through his mother and
natural guardian, Jane Doe; HEATHER V., by and through her mother and guardian, Marcia V.; JANE S.;
KEVIN V., by and through his mother and legalguardian,
Kathy V.; JENNIFER T., by and through her legal
guardians, Sharon and Greg T.; LESLIE H.;
CATHERINE M.; STEPHANIE B.; CONRAD J.,by and through his legal guardian, C.W. J.; CHRJSTOPITER H., by and through his legal guardian, SueH.; MICHAEL R.,by and through his legal guardian, Susan it; and on behalf of themselves and all other persons similarly situated,
Plaintiffs,
By: s/Shirley A. Mora James Shirley A. Mora James, NSBA #19705 Dianne DeLair, NSBA #21867 Bruce 0. Mason, NSBA #12626 Toni Leija-Wilson, Law Clerk Nebraska Advocacy Services, Inc. 134 South 13th Sweet Suite 600 Federal Trust Building Lincoln, NE 68508 Telephone: (402) 474-3183 Fax: (402) 474-3274 E-mail: shfrleycnas-pa.org
E-mail: diannenas-pa.org E-mail: brucenas-pa.org
30

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 04-3263 ___________

Bill M., by and through his father and *

natural guardian, William M., and on *

behalf of themselves and all other

*

persons similarly situated; John Doe, *

by and through his mother and natural *

guardian, Jane Doe, and on behalf of *

themselves and all other persons

*

similarly situated; Heather V., by and *

through her mother and guardian,

*

Marcia V., and on behalf of themselves *

and all other persons similarly situated; *

Jane S., by and through her mother and *

natural guardian, Patricia S., and on *

behalf of themselves and all other

*

persons similarly situated; Kevin V., *

by and through his mother and legal *

guardian, Kathy V., and on behalf of *

all other persons similarly situated; *

Jennifer T., by and through her parents *

and legal guardians, Sharon and Greg *

T., and on behalf of themselves and all *

other persons similarly situated;

*

William M., on behalf of his son,

*

Bill M.; Jane Doe, on behalf of her son, *

John Doe; Marcia V., on behalf of her *

daughter, Heather V.; Patricia S., on *

behalf of her daughter, Jane S.; Kathy *

V., on behalf of her son, Kevin V.; *

Sharon T., on behalf of her daughter, *

Jennifer T.; Greg T., on behalf of his *

daughter, Jennifer T.,

*

Appeal from the United States District Court for the District of Nebraska.

*

Plaintiffs/Appellees,

*

*

United States of America,

*

*

Intervenor on Appeal, *

*

v.

*

*

Nebraska Department of Health and *

Human Services Finance and Support; *

Nebraska Department of Health and *

Human Services; Stephen B. Curtiss, *

in his official capacity as the Director *

of Nebraska Department of Health and *

Human Services Finance and Support; *

Ron Ross, in his official capacity as the *

Director of Nebraska Department of *

Health and Human Services,

*

*

Defendants/Appellants. *

___________

Submitted: March 16, 2005 Filed: May 27, 2005 ___________

Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges. ___________

WOLLMAN, Circuit Judge.

The Nebraska Department of Health and Human Services and the Nebraska Department of Health and Human Services Finance and Support (collectively, Nebraska) appeal from the district court’s denial of their motion to dismiss based on Eleventh Amendment sovereign immunity. We reverse.

-2-

I. Bill M. and six other developmentally disabled adults (Plaintiffs) sued Nebraska and various Nebraska officials in their official capacities, alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and other federal and state law provisions. Plaintiffs asserted that they are each “eligible for, desire, have applied for or have attempted to apply for and have been denied home and community-based Medicaid-funded services.” Compl. at 2. They alleged that Nebraska’s withholding of funding to these services has left them without adequate services to meet their needs and placed them “at imminent risk of unnecessary institutionalization.” Id. Nebraska and the officials moved to dismiss on various grounds. The district court denied the motion.
This interlocutory appeal is limited to one aspect of the dismissal motion: Nebraska’s contention that Eleventh Amendment immunity precludes the district court from having subject matter jurisdiction over the Title II claim. Plaintiffs contend that Title II and related statutory provisions ostensibly abrogate Eleventh Amendment immunity with respect to a Title II claim. Nebraska argues, in response, that the extension of Title II to the states is unconstitutional under our circuit’s precedent. The United States has intervened to defend the statutory abrogation.
II. Although we have jurisdiction over an interlocutory appeal of an order denying Eleventh Amendment immunity under the collateral order doctrine, Maitland v. University of Minnesota, 260 F.3d 959, 962 (8th Cir. 2001), we must also consider the issue of standing.1 Article III standing requires a party to show actual injury, a causal relation between that injury and the challenged conduct, and the likelihood that
1Although we raised the question of standing sua sponte during oral argument, it is elementary that standing relates to the justiciability of a case and cannot be waived by the parties. See Sierra Club v. Robertson, 28 F.3d 753, 757 n.4 (8th Cir. 1994).
-3-

a favorable decision by the court will redress the alleged injury. Minnesota Citizens Concerned for Life v. Federal Election Comm’n, 113 F.3d 129, 131 (8th Cir. 1997) (citing Lujan v. Defenders of the Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiffs allege in their Title II claim (their first claim for relief) that Nebraska’s failure to provide adequate funding “places [Plaintiffs] at risk of institutionalization.” Compl. at 28 ¶ 117 (emphasis added). The mere risk that Plaintiffs may be institutionalized due to the lack of adequate funding does not constitute an actual or imminent harm sufficient to satisfy the first element of standing.2
Plaintiffs also allege, however, in portions of their complaint incorporated by reference into the first claim for relief, see id. at 27 ¶ 111, that they have suffered actual harm from Nebraska’s refusal to fund home and community-based Medicaidfunded services. See id. at 15-16 ¶ 51 (lack of funding precludes necessary residential services in a community setting for Bill M.); id. at 17 ¶¶ 55-56 (same for John Doe); id. at 19-20 ¶ 69 (Heather V.’s required services are underfunded, which jeopardizes her health and safety); id. at 22 ¶ 83 (Jane S. is unable to move to a work setting more suited to her needs due to the denial of additional funding); id. at 23 ¶¶ 90-91 (Kevin V.’s services are not adequately funded to protect his health and safety); id. at 24 ¶¶ 97-98 (same for Jennifer T.); id. at 26 ¶¶ 107-08, 110 (same for Marcus J.). We accept as true all of the complaint’s material allegations and construe the complaint in favor of the complaining party for purposes of deciding the question of standing. See Shain v. Veneman, 376 F.3d 815, 817 (8th Cir. 2004). We conclude that Plaintiffs have alleged concrete and particularized harm sufficient to satisfy the first element of standing. Plaintiffs also meet the other standing requirements that the
2The complaint alleges that the denial of funding to one of the Plaintiffs, Marcus J., has forced him “to remain in a more restrictive institutional setting, i.e., a nursing home, in order to receive the services he needs.” Compl. at 26 ¶ 109. Because Plaintiffs’ counsel informed us at oral argument that Marcus J. is no longer in a nursing home, we need not address the issue of whether the limitation of services to the “more restrictive institutional setting” of a nursing home would constitute actionable harm sufficient to provide Marcus J. with standing.
-4-

alleged harm be traceable to the defendant’s challenged action and redressable by the court’s favorable decision. See Minnesota Citizens, 113 F.3d at 131 (“When government action or inaction is challenged by a party who is a target or object of that action . . . ‘there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.’”) (quoting Lujan, 504 U.S. at 561-62)).
III. We review de novo a decision to deny or grant a motion to dismiss for lack of subject matter jurisdiction. Metzger v. Village of Cedar Creek, Neb., 370 F.3d 822, 823 (8th Cir. 2004). We held in Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc), that “the extension of Title II of the ADA to the states was not a proper exercise of Congress’s power under Section 5 of the Fourteenth Amendment.” Accordingly, Alsbrook is dispositive here unless it has been superseded.
Plaintiffs and the United States argue that Alsbrook has been superseded by Tennessee v. Lane, 124 S. Ct. 1978 (2004). The plaintiffs in Lane were paraplegics who used wheelchairs for mobility. They alleged that the lack of reasonable access to state and county courthouses constituted a Title II violation. Tennessee moved to dismiss based on Eleventh Amendment immunity, and the plaintiffs argued that Congress had abrogated Eleventh Amendment immunity under Title II. The Supreme Court held that “Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority to enforce the guarantees of the Fourteenth Amendment.” Id. at 1994 (emphasis added). The Court thus carefully limited its holding to a particularized class of cases. See id. at 1993 (“Because we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further.”) (emphasis added). Several of our sister circuits have interpreted Lane accordingly. See Cochran v. Pinchak, 401 F.3d 184
-5-

(3d Cir. 2005) (refusing to extend Lane to Title II claims by disabled prison inmates); Miller v. King, 384 F.3d 1248 (11th Cir. 2004) (same). See also Pace v. Bogalusa City School Bd., 403 F.3d 272, 303 (5th Cir. 2005) (en banc) (Jones, J., concurring in part and dissenting in part) (concluding, as to issue not reached by majority, that Fifth Circuit’s prior precedent “remains valid in holding that ADA Title II, apart from the Lane scenario, does not validly abrogate States’ Eleventh Amendment immunity”). We conclude that Alsbrook has been modified by Lane to the extent that a discrete application of Title II abrogation—related to claims of denial of access to the courts—has been deemed by the Court to constitute a proper exercise of Congress’ power. Other applications of Title II abrogation, like the one at issue here, continue to be governed by Alsbrook.3
IV. Plaintiffs and the United States argue that even if Nebraska were to prevail on its interlocutory appeal, Nebraska would still have to defend the “essentially identical” claim that Plaintiffs bring under Section 504 of the Rehabilitation Act,4 as well as the ADA claims brought against the Nebraska officials. Because the Eleventh Amendment provides Nebraska constitutional immunity from suit, the existence of parallel claims is immaterial.5
3Although Lane may well presage the eventual rejection of Alsbrook’s rationale, the Supreme Court’s carefully cabined holding counsels against a conclusion that Lane supersedes Alsbrook. Such a determination would have to come from the Supreme Court or from an en banc decision of our court.
4We held in Doe v. Nebraska, 345 F.3d 593, 599 (8th Cir. 2003), that Nebraska’s receipt of federal funds effected a knowing waiver of its sovereign immunity to actions brought under Section 504.
5The United States’ argument that we should direct the district court to hold in abeyance the Eleventh Amendment issue until after the Section 504 claim has been resolved fails for the same reason.
-6-

The denial of Nebraska’s motion to dismiss based on sovereign immunity with respect to Plaintiffs’ Title II claim is reversed, and the case is remanded to the district court with direction to dismiss the Title II claim against Nebraska. COLLOTON, Circuit Judge, concurring in the judgment.
I agree that Bill M., John Doe, Jane S., and Marcus J. have Article III standing based on their allegations of injury resulting from the State’s refusal to provide community-based funding under Medicaid to which they claim entitlement. I also agree that although Tennessee v. Lane, 124 S. Ct. 1978 (2004), undermined some of the reasoning of Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc), our court’s en banc precedent still governs this case, which involves only a claim for additional funding of community-based services and implicates no fundamental constitutional right. Accordingly, I concur in the judgment.
______________________________
-7-

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 166 Date Filed: 02/01/08 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father

)

and natural guardian, William M., et al. )

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES )

FINANCE AND SUPPORT, et. al.,

)

)

Defendants.

)

4:03CV3189
MEMORANDUM AND ORDER

The court has been advised that the parties in the above-captioned matter have reached a settlement of their claims. Accordingly,

IT IS ORDERED that:

(1) Within thirty (30) calendar days of the date of this order, the parties shall file a joint stipulation for dismissal (or other dispositive stipulation) with the clerk of the court (and provide a copy to the magistrate judge and to United States District Judge Richard G. Kopf, the trial judge to whom this case is assigned), together with submitting to the trial judge a draft order which will fully dispose of the case;

(2) Absent compliance with this order, this case (including all counterclaims and the like) may be dismissed without further notice;

(3) This case is removed from the court's March 10, 2008 trial docket upon representation by the parties that the case has settled.

February 1, 2008.

BY THE COURT:
s/ Richard G. Kopf United States District Judge

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 190 Date Filed: 06/20/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father and )

natural guardian, William M.; JOHN DOE, by )

and through his mother and natural guardian, )

Jane Doe; HEATHER V., by and through her )

mother and guardian, Marcia V.; JANE S.; )

KEVIN V., by and through his legal guardian )

Kathy V.; JENNIFER T., by and through her )

legal guardians, Sharon and Greg T.; LESLIE )

H.; CATHERINE M.; STEPHANIE B.; )

CONRAD J., by and through his legal )

guardian, C.W. J.; CHRISTOPHER H., by )

and through his legal guardian, Sue H.; )

MICHAEL R., by and through his legal )

guardian, Susan R.; and on behalf of )

themselves and all other persons similarly )

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF HEALTH )

AND HUMAN SERVICES FINANCE AND )

SUPPORT, NEBRASKA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

RICHARD NELSON, in his official capacity )

as the Director of Nebraska Department of )

Health & Human Services Finance and )

Support; and NANCY MONTANEZ, in her )

official capacity as the Director of Nebraska )

Department of Health & Human Services, )

)

Defendants.

)

Case No. 4:03CV3189
MEMORANDUM AND ORDER

Before I “approved” the settlement agreement in this case, the parties were informed in a memorandum and order that:
1. I made no determination that the settlement agreement was good or bad or fair or unfair.

Case: 4:03-cv-03189-RGK-DLP Document #: 190 Date Filed: 06/20/08 Page 2 of 3
2. With the exception that I would resolve the attorney fee question, I retained no jurisdiction to enforce or construe the settlement agreement in the future. In other words, the settlement agreement was merely a contract between the parties and my “approval” of it conferred no other status.
(Filing 172 (April 9, 2008 Mem & and Order).)
To be doubly sure, I required the parties to certify that they had read the aforementioned memorandum and order and, after having done so, requested that I grant the joint motion and stipulation for approval of settlement. (Id.) Both parties filed the required certifications. (Filings 174 (Defs.’ Resp.) & 175 (Pls.’ Resp.) Thereafter, I “approved” the settlement agreement, subject to the terms of my previous memorandum and order. (Filing 177 (April 21, 2008 Mem. & Order).) Judgement was entered dismissing this case with prejudice with the court retaining jurisdiction only to decide the attorney fee question. (Filing 179.)
In a similar case, the Eighth Circuit has ruled that a private settlement agreement is not enough to allow attorney fees under 42 U.S.C. § 1988(b). Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003) (settlement agreement failed to make juvenile inmate class a “prevailing party” and thus no attorney fees were awarded). See also Rexam Inc. v. United Steel Workers of America, AFL-CIO-CLC, No. 03-CV-2998, 2008 WL 583702 (D. Minn. Feb. 6, 2008) (following Christina A).
The plaintiffs acknowledge the existence of Christina A but criticize the opinion, suggesting that I should not follow it. (Filing 182 (Pls.’ Br.)at CM/ECF p. 7.) As a district judge within the Eighth Circuit, I am not free to disregard precedent from the Eighth Circuit. I must follow Christina A because it is a closely analogous case and is properly considered precedential.1
Here, there is no question that the agreement I “approved” is nothing more than a private settlement agreement. I made that plain to the parties before I approved their agreement. Knowing my views, they asked me to approve their disposition of this case understanding that I expressed no opinion on the merits of the agreement and that I retained no jurisdiction to enforce or construe their contract. Simply put, the plaintiffs are not “prevailing parties” within the meaning of any of the applicable statutes or cases. Therefore, I should not award them attorney fees.
1Although the Court of Appeals does not need my approval, in my view, Christina A was properly decided.
-2-

Case: 4:03-cv-03189-RGK-DLP Document #: 190 Date Filed: 06/20/08 Page 3 of 3

Accordingly,

IT IS ORDERED that the motion for attorney fees (filing 180) is denied. A separate judgment will be issued.

June 20, 2008.

BY THE COURT:
s/Richard G. Kopf United States District Judge

-3-

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 105 Date Filed: 09/02/05 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father )

and natural guardian, William M., et al. )

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES )

FINANCE AND SUPPORT, et. al., )

)

Defendants.

)

4:03CV3189
MEMORANDUM AND ORDER

Defendants took an interlocutory appeal of a portion of this court’s order (filing 66) denying Defendants’ motion to dismiss –that which addressed the claim brought under Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq. This matter is now before the court upon the judgment of the Court of Appeals (filing 104), remanding this cause for proceedings consistent with the opinion of the Court of Appeals (filing 103, reported at 408 F.3d 1096 (8 th Cir. 2005)).

For the reasons stated by the Court of Appeals, 408 F.3d at 1098-1100, I will dismiss the first claim for relief of the Amended Complaint (filing 23), which asserts a violation of Title II of the ADA.

IT IS ORDERED that the first claim for relief of the Amended Complaint (filing 23), which asserts a violation of Title II of the ADA, is dismissed with prejudice.

September 2, 2005.

BY THE COURT:
s/Richard G. Kopf United States District Judge

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 177 Date Filed: 04/21/08 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father and )

natural guardian, William M.; JOHN DOE, by )

and through his mother and natural guardian, )

Jane Doe; HEATHER V., by and through her )

mother and guardian, Marcia V.; JANE S.; )

KEVIN V., by and through his legal guardian )

Kathy V.; JENNIFER T., by and through her )

legal guardians, Sharon and Greg T.; LESLIE )

H.; CATHERINE M.; STEPHANIE B.; )

CONRAD J., by and through his legal )

guardian, C.W. J.; CHRISTOPHER H., by )

and through his legal guardian, Sue H.; )

MICHAEL R., by and through his legal )

guardian, Susan R.; and on behalf of )

themselves and all other persons similarly )

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF HEALTH )

AND HUMAN SERVICES FINANCE AND )

SUPPORT, NEBRASKA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

RICHARD NELSON, in his official capacity )

as the Director of Nebraska Department of )

Health & Human Services Finance and )

Support; and NANCY MONTANEZ, in her )

official capacity as the Director of Nebraska )

Department of Health & Human Services, )

)

Defendants.

)

Case No. 4:03CV3189
MEMORANDUM AND ORDER

Pursuant to my earlier memorandum and order (filing 172) and the statements and representations of the parties and their counsel (filings 174 and 175) in response thereto,
IT IS ORDERED that:
1. The joint motion for settlement approval (filing 171) is granted.

Case: 4:03-cv-03189-RGK-DLP Document #: 177 Date Filed: 04/21/08 Page 2 of 2

2. The settlement agreement (attachment 1 to filing 171) is approvedsubject to the terms of the Court’s earlier memorandum and order (filing 172).

3. The plaintiffs shall file their joint motion to dismiss with prejudice within three working days. As soon as that motion is filed, the Court will enter a judgment pursuant to Federal Rule of Civil Procedure 54(b) dismissing the entirety of this case, except for the issue of attorney fees, with prejudice.

4. At the request of the parties, the Court retains jurisdiction to rule on the anticipated motion of the plaintiffs for attorneys’ fees. Plaintiffs shall have 21 days from the entry of this order to file such a motion, supporting affidavits and supporting brief. The defendants shall have 21 days thereafter to respond. Plaintiffs shall have 7 days thereafter to file a reply.

5. To the extent that the plaintiffs’ response (filing 175) contains any equivocation or request for additional relief, such equivocation is rejected and any request for additional relief is denied.

6. Failure to comply in a timely manner with this memorandum and order may result in the imposition of sanctions including dismissal of the entirety of this case with prejudice.

April 21, 2008.

BY THE COURT:
s/Richard G. Kopf United States District Judge

-2-

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father and

)

natural guardian, William M; JOHN DOE,

)

by and through his mother and natural

)

guardian, Jane Doe; HEATHER V., by and

)

through her mother and guardian, Marcia V;

)

JANE S.; KEVIN V., by and through his

)

legal guardian, Kathy V.; JENNIFER T.,

)

by and through her legal guardians, Sharon

)

and Greg T.; LESLIE H.; CATHERINE M.;

)

STEPHANIE B.; CONRAD J., by and through

)

his legal guardian, C.w. J.; CHRISTOPHER H.,

)

by and through his legal guardian, Sue H.;

)

MICHAEL R, by and through his legal guardian,

)

Susan R; and on behalf of themselves and all other )

persons similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES FINANCE AND SUPPORT,

)

NEBRASKA DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES, RICHARD NELSON,

)

in his official capacity as the Director of Nebraska )

Department of Health & Human Services Finance & )

Support; and NANCY MONTANEZ, in her official

)

capacity as the Director of Nebraska Department of )

Health & Human Services;

)

)

Defendants.

)

Case No. 4:03CV3189

SETTLEMENT AGREEMENT

INTRODUCTION

1. Plaintiffs brought the Lawsuit against Defendants alleging violations of the Americans With Disabilities Act ("ADA") (42 U.S.C. §12101 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794), Medicaid laws and regulations [42 U.S.C. §1396a(a)(8), 42 C.F.R. § 440.230(b), 42 U.S.C. § 1396n(c)(2)(A), 42 U.S.C. §1396a(a)(3), and 42 C.F.R §§ 431.200 - 431.250] and the due process clause of the Fourteenth Amendment as set forth in the Second Amended Complaint.

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 2 of 24
2 The Defendants have consistently, continually and steadfastly denied that any aspect of the Developmental Disability Program violated or violates any provision of applicable federal law.
DEFINITIONS
3. "Agency Defendants" shall refer to those Defendants who are either Health and Human Services or one of its legal predecessors named in the Second Amended Complaint.
4. "Defendants" shall refer collectively to the Agency Defendants and the Individual Defendants.
5. When used in reference to any time on or after July 1, 2007, "Department" shall mean the Department of Health and Human Services under the Health and Human Services Act (Neb. Rev. Stat. § 81-3110 to 81-3124), enacted in 2007. When used in reference to any time prior to July 1, 2007, "Department" shall collectively refer to those entities known as the Department of Health and Services and the Department of Health and Human Services Finance and Support which existed under the Nebraska Health and Human Services System Act (Neb. Rev. Stat. §§81-3101 to 3311), which Act was repealed in 2007. In reference to any time period, and unless specifically stated otherwise, "Department" may also refer to the Division of Developmental Disabilities, a subdivision of the Department of Health and Human Services both before and after enactment of the Health and Human Services Act (Laws 2007, LB 296, Neb. Rev. Stat. §§ 81-3110 to 81-3124) in 2007.
6. "Developmental disability" shall be defined as it is presently defined in Neb. Rev. Stat. § 83-1205.
7. "Home and Community-Based Services" are specialized services provided to persons with developmental disabilities in the community as opposed to in an ICF/MR, are funded by a combination of Federal and State Medicaid funds, and are authorized by waivers granted to the State of Nebraska pursuant to §1915(c) of the Social Security Act and by Neb. Rev. Stat. §§ 83-1215, 68-1202 to 68-1210.
8. "ICF/MR" is an intensive care facility for the mentally retarded. The ICF/MR operated by the State of Nebraska is Beatrice State Developmental Center ("BSDC").
9. "Individual Defendants" shall refer to those Defendants who are individuals and were named in the Second Amended Complaint in their official capacities, and those individual officials, namely Christine Peterson and John Wyvill, who, pursuant to the Health and Human Services Act, Laws 2007, LB 296, have succeeded to duties and responsibilities pertinent to developmental disabilities and Medicaid.
2

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 3 of 24
10. "Lawsuit" shall mean the above captioned legal proceeding wherein the Second Amended Complaint and the Answer form the pleadings which set forth the issues in this case.
11. "LB 297 Workgroup" shall mean the workgroup which was originally convened in 2004 pursuant to Legislative Bill 297 (98th Legislature, Second Session). The LB 297 Workgroup may also be referred to herein as the "~AP Workgroup." The terms LB 297 Workgroup and OAP Workgroup shall also refer to a workgroup reconvened pursuant to this Agreement to complete further work on issues relating to the
~AP.
12. "LR156 Workgroup" shall mean the workgroup called for by Legislative Resolution 156 (100th Legislature, First Session). The LR 156 Workgroup may also be referred to herein as the "Wait List Workgroup."
13. "Medicaid" is the joint program administered by the Federal and Nebraska state governments pursuant to the Federal Medicaid Act, 42 U.S.C. §1396. As a condition to its receipt of Federal Medicaid funding, Nebraska has a written comprehensive state plan for medical assistance which has been submitted to, and approved by, the Federal Centers for Medicare and Medicaid Studies pursuant to 42 U.S.C. §1396(a). See also, Neb. Rev. Stat. § 68-907(4). The Medicaid program includes home and community-based services provided under the waiver approved for Nebraska by the Centers for Medicare and Medicaid Studies pursuant to §1915(c) of the Federal Social Security Act (42 U.S.C. § 1396n(c), 42 C.F.R. § 441.300) through which specialized services are provided to developmentally disabled persons in the State of Nebraska.
14. "~AP" shall mean the Objective Assessment Process which is referred to in Neb. Rev. Stat. §§ 83-1209(1)(e) and 83-1216(1). The OAP is a process for assessing the abilities and difficulties of each person receiving developmental disability services, and assigning adequate and equitable funding to each such person for the provision of specialized services. This process is objective in that the assignment of funding is determined in relation to readily observed and verifiable characteristics of each individual being assessed, and system experience with the funding that will be necessary to provide adequate services to meet the individual's needs, rather than making such determination by subjective impressions and beliefs as to the individual's needed services.
15. "Plaintiffs" shall refer to those individuals listed as named Plaintiffs in the Second Amended Complaint.
16. "Released Claims" shall mean all the claims of Plaintiffs set forth in the Second Amended Complaint as they specifically pertain to any regulations, policies, procedures, conditions, determinations or actions of Defendants made, or in existence, on or before the date upon which this Agreement is executed.
3

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 4 of 24
17. The "Second Amended Complaint" is that Second Amended Complaint (filing 126) which was filed in the above-captioned case on April 24, 2006.
18. "Specialized service" shall mean a service provided specifically for persons with developmental disabilities.
19. "Wait List" shall mean a list maintained by the Department of persons with developmental disabilities who have requested one or more specialized services, but who are not receiving at least one such service and are waiting for funding to receive such specialized service. The Wait List is also known as the "Register of Persons with Unmet Needs."
RECITALS
20. WHEREAS, protracted litigation is not in the best interests of the parties; and
21. WHEREAS, in the interests of avoiding the uncertainties and expense of further litigation and a trial on the merits, the parties wish to resolve their differences by compromising and entering into a mutually agreeable settlement.
AGREEMENT
NOW, THEREFORE, the parties enter into the following Agreement:
22. To resolve those claims set forth in the Second Amended Complaint which concern the OAP, the parties agree the Department will reconvene the LB 297 Workgroup. In addition to the original members of the LB 297 Workgroup, Plaintiffs' counsel may select up to twelve additional participants to be members of the LB297 Workgroup. Defendants may also select additional participants in a number no greater than the number of additional participants selected by Plaintiffs' counsel. The Department agrees to pay the reasonable and necessary expenses of participation of the original OAP work group partiCipants in connection with their official duties. The Department further agrees to pay the reasonable and necessary expenses of participation of up to four new workgroup participants selected by Plaintiffs' counsel and up to four new workgroup participants selected by Defendants in connection with their official duties. Among the hew participants selected by Plaintiffs' counsel who will be added to the workgroup is an expert in developmental disability systems. The Department agrees to pay all reasonable and necessary out-of-pocket costs, travel, lodging and food expenses of this expert while he is participating in the work group. Such expense reimbursement for the expert and all other members of the work group shall be in accordance with the requirements of the Department of Administrative Services that apply to expense reimbursement for employees of the State of Nebraska. The Department agrees it will provide specific documents to the work group for their review and comment relative to the OAP and implementation. The Department will allow a reasonable time for that input to be received and convene no less than one
4

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 5 of 24
meeting with the work group. The expert will sign a confidentiality agreement relating to the performance of his duties hereunder and must also commit to not provide testimony for the parties in any subsequent litigation as to the subject areas of his review as a member of said work group.
23. The foregoing OAP workgroup will work with the Department to develop an exception process whereby initial individual OAP numbers would be subject to refinement based on specific aspects of the person's situation. The work group will provide advice and input as to this process but the Department will retain the final authority to adopt an exception process acceptable to the Department through the promulgation of rules and regulations in that regard.
24. The OAP workgroup will also review any implementation plan developed by the Department and may make recommendations to the Department with respect to system-wide implementation.
25. In connection with the those claims set forth in the Second Amended Complaint relating to the Wait List issue, Defendants agree to obtain funding for the Wait List Workgroup contemplated by LR156. At this time, the Department has secured $40,000 from the Nebraska Planning Council on Developmental Disabilities for this process.
26. In order to complete its work, an independent contractor will be selected from bids responding to a request for proposals by the Nebraska Planning Council on Developmental Disabilities. The independent contractor will facilitate the work of the Wait List Workgroup. The Wait List workgroup shall include interested stakeholders, and the Plaintiffs shall have a right to select up to twelve members of the workgroup.
27. Consistent with LR 156, the Wait List Workgroup shall: (a) submit recommendations for a strategic plan to incrementally reduce the number of persons on the waiting list for developmental disabilities to meet the intent of the legislature; (b) consult with the Department to review and make any revision to the rate methodology; and (c) submit the workgroup's recommendations on the strategic plan and revisions to the rate methodology in a report to the Medicaid Reform Council, the Legislature and the Govemor.
28. The Department seeks to fulfill due process and notice requirements through the provision of a formal written notice of decision to all applicants or clients of the Developmental Disability Program. With respect to the due process and notice issue, Defendants agree to use the following procedures and forms in connection with a request for developmental disability services:
A. The Department will initiate action on an individual's request for a specific home and community-based service and complete such action, when feasible, within 45 days of his or her request. At the time of a request for services, each applicant will receive a written notice explaining his or her right to
5

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 6 of 24
have action on his or her application initiated within 45 days, and to request a fair hearing if no action has been initiated in that time frame, or if adverse action is taken on the request. In conformity with 42 CFR §431.206(b), that notice will include a statement as to the method by which the individual may request a hearing, that he may use legal counsel, represent himself, or be represented by a relative, friend or other spokesman. In addition, that notice will clearly indicate that if the individual requests a fair hearing due to inaction, then that request must be made within 90 days of the date of the original request for services. 42 CFR § 431.221 (d).
S. Upon completion of the action on the request, whether the individual is determined to be eligible for services or is denied the requested service for any reason, including a lack of Departmental funding, a written Notice of Decision will be issued. The notice will clearly state the determination and that the individual has a right to appeal the determination and the notice will set forth the deadline for appealing. The notice will be in conformity with 42 CFR §431.210, and it will provide that the individual may make an appeal request, in writing, anytime within 90 days after the date of the Notice of Decision..
C. Attached as Exhibits 1 and 2 are the notices which the Department intends to use to implement the foregoing Paragraphs 28 (A) and 28 (S) and they are incorporated herein by this reference.
29. The Plaintiffs and Defendants agree to work in good faith with each other to fully implement all the terms of this Agreement.
30. Plaintiffs wish to obtain and will seek Court approval of the Settlement Agreement since most of the named Plaintiffs are under guardianship. In addition, they will ask the court to retain jurisdiction to determine attorney's fees and costs, if any, as discussed in Paragraph 33 below. Upon completion of that process, Plaintiffs will release their Released Claims, and act to dismiss the Lawsuit with prejudice.
31. Plaintiffs agree to forebear from filing any further suits concerning: (a) the OAP until completion of the OAP Workgroup process, and (b) the Wait List until completion of the Wait List Workgroup process. In the event a workgroup is not completed on or before July 1, 2009, any of the Plaintiffs may file further suit after July 1, 2009 with respect to the issue that was before such workgroup.
32. Notwithstanding any other provision in this Agreement, each Plaintiff shall retain the right to administratively appeal any specific action or inaction taken with respect to his or her specialized supports and services by the Department at any time following execution of this Agreement. In the event of an adverse administrative decision, each Plaintiff shall also retain the right to seek judicial review of such an administrative decision.
6

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 7 of 24
33. Plaintiffs' counsel intend to file a motion with the Court seeking an award of attorney's fees and costs from the Defendants, and Defendants agree the Court may retain jurisdiction of this case to decide such request for attorneys fees and costs. Defendants do not agree that any attorney fees or costs should be awarded and will oppose any such motion. Defendants do not by this agreement waive any grounds they may have to object to such fees and costs, either in whole or in part, including Defendants' position that this agreement does not confer prevailing party status on Plaintiffs. Plaintiffs and their counsel do not by this agreement waive any grounds they may have for recovery of attorney's fees and costs, including Plaintiffs' position that this agreement does confer prevailing party status on Plaintiffs, and nothing in this agreement shall constitute Plaintiffs' or their counsel's agreement or consent to waive an award of attorney's fees and costs from Defendants.
34. This Agreement may be executed in counterparts.
,1
Dated this 31 'clay of March, 2008.
7

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 8 of 24
Agreed to by Defendants: OF HEALTH AND HUMAN SERVICES
DEVELOPMENTAL DISABILITIES DIVISION
Agreed to by Plaintiffs: BILL MATHIES By: William Mathies, his guardian ROBBIE McCARTNEY (John Doe) By: Bonnie McCartney, his guardian
8

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 9 of 24

Agreed to by Defenc;:fants: NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES By: Christine Peterson. Chief Executive Officer DEVELOPMENTAL DISABILITIES DIVISION By: John Wyvill. Director

Agreed to by Plaintiffs:

W~athies. BI!:tTHI~~

By;

his guardian

ROBBIE McCARTNEY (John Doe)

By: Bonnie McCartney. his guardian

8

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 10 of 24
Agreed to by Defendants: NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES By: Christine Peterson, Chief Executive Officer DEVELOPMENTAL DISABILITIES DIVISION By: John Wyvill, Director Agreed to by Plaintiffs: BILL MATHIES By: William Mathies, his guardian ROBBIE McCARTNEY (John Doe)
8

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 11 of 24
HEATHER VOMWEG
JANE SMITH By: Patricia McGill Smith, her guardian KEVIN VOKOUN By: Kathy Vokoun, his legal guardian JENNIFER TURNER By: Sharon and Greg Turner, her legal guardians LESLIE HANLEY CATHERINE MILLER STEPHANIE BAIRD
9

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 12 of 24
HEATHER VOMWEG By: Marcia VomWeg, her guardian JANE SMITH
aa:Gu!4J /JJekdrrd By: Patricia McGill Smith, her guardian KEVIN VOKOUN By: Kathy Vokoun, his legal guardian JENNIFER TURNER By: Sharon and Greg Turner, her legal guardians LESLIE HANLEY
CATHERINE MILLER
STEPHANIE BAIRD
9

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 13 of 24
KEVIN VOKOUN
BY:~kO~dian

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 14 of 24
JENNIFER TURNER
t3.
d Greg Turner, her legal guardians
fiy: Sharon and Greg Turner, her legal guardians

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 15 of 24 LESLEY HANLEY

C'Ia~I:,"sc"e:26.4, :01'-31.'1-'.'1cl°;v-0r} ,3,'"1,A)8I9I"vl -RGK-DLP Document #: 171-1 Date Filed: 04/0N2o,/038640 Pagr,e 196 of 24
CATIffiRINE MILLER

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 17 of 24 STEPHANIE BAIRD J

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 18 of 24 CONRAD JAMES
es, his legal guardians

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 19 of 24
CHRISTOPHER HAMILTON By: Sue Hamilton, his legal guardian

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 20 of 24 MICHAEL ROOD

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 21 of 24

..~..

Division of Developmental Disabilities

State of Nebraska

Nebraska Department of Health----------'------------------D-a-ve-H-e;-ne-m-a-n-,-G-ov-e-rn-o-r

and Human Services

Nebraska Department of Health and Hnman Services Division of Developmental Disabilities
Commnnity-Based Services For Persons with Developmental Disabilities

NOTICE OF RIGHTS AND OBLIGATIONS

Name:

Date of Birth:

NFOCUS Person Number: _ _ _ _ _ _ __

Notice of Rights

As a person who has requested Developmental Disability services, I understand that I have the following rights:

• The right to have action initiated on my request within 45 days of the date of my request for services with the action completed and a decision made within that time iffeasible.

• The right to receive written notice of any decision on my request or any termination or change of previously authorized services.

• The right to file an appeal in writing from any decision or inaction on my request and to have a fair hearing on my appeal. I understand that I must appeal within 90 days of the date of any Notice of Decision that I receive and after 45 days from the date of my request for services ifI am appealing inaction on my request.

Notice of Obligations
I have been informed of and I understand and agree to the following obligations:
• I must apply for and accept all benefits that I may be eligible to receive, which may include SSI, SSA, Nebraska Medicaid, and Home & Community-Based waiver services.
• I must complete and submit required information annually or as reqnested. This may include benefit and resource information or a copy of my tax returns for the determination of my ability to pay for community-based developmental disabilities. I may request an ability to pay determination prior to accepting services.
• I must participate in any assessment or evaluation that may be required which may include, but are not limited to, psychological, medical, and dental evalnation(s) and the Objective Assessment Process.
• I must pay the amonnt of my Medicaid share of cost obligation to my DD provider when I am informed that I have a Medicaid share of cost obligation.

I have been informed that failure to fulfill the above obligations may result in denial or

termination of funding for developmental disabilities services.".~_,",:!!~~!",_",

Rev 01108

:; EXHIBIT
~
I I

DSC-53

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 22 of 24

Signature (IndividuallParent of a minor child/legal guardian) Signature (Family member or other witness) Signature (DHHS staff providing information)

Date Date Date

I have received the Financial Questiouuaire and understand that I mnst submit the completed questionnaire within 20 days to the DHHS Financial Responsibility office.

Signature (IndividuallParent of a minor child/legal guardian)

Date

Original: Individual File

Copy: IndividuallParent of a minor child/legal guardian

Rev 01108

DDSC-53

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 23 of 24
Nebraska Department of Health and Human Services NOTICE OF DECISION

1. Person ill: 3. Name:
5. Address:

2. Date: 4. Health and Human Servicesl
Developmental Disabilities
6. Address:
7. Svc Coord:

SECTION I: Initial Eligibility
0 A Your application for Developmental Disabilities funded services is being considered but a decision regarding your

eligibility has not been made. Your case is pending until a determination can be made.

B 0 It has been determined that you are

for Developmental Disabilities funded services.

SECTION II: Developmental Disabilities Funding Available

0 C

Based on the Objective Assessment Process (OAP), Developmental Disabilities funding for

o Day services will be $

beginning

and ending

o Residential services will be $

beginning

and ending

SECTION III: Respite funding
0 D It has been determined that your family is

for Developmental Disabilities respite funding.

If eligible, your family may receive up to 30 days of respite services per year.

SECTION IV: Six Month Reassessment

E 0 Based on the six-month reassessment your Developmental Disabilities funding for

o Day services will be $

beginning

o Residential services will be $

beginning

SECTION V: Priority One Funding
0 F Priority One (Emergency) funding, based on the Support Needs Assessment (SNA) has been

SECTION VI: Termination
G 0 services funded by Developmental Disabilities will be terminated effective

SECTION VII: Explanation:
H 0 The reason(s) for the above action(s) are: .The manual reference(s) that supports or the change in federal or state law
that requires the action(s) are: .

Service Coordinator
Original: person or guardian Copy: case record (correspondence)

Date

PLEASE READ THE BACK OF THIS FORM REGARDING YOUR RIGHTS

Revised 03/09/07

EXHIBIT
2

DD-SC38

Case: 4:03-cv-03189-RGK-DLP Document #: 171-1 Date Filed: 04/02/08 Page 24 of 24 YOUR RIGHTS
RIGHT TO HAVE ACTION INITIATED WITHIN 45 DAYS
The Nebraska Department of Health and Human Services shall initiate action on your request for any specific home and community-based service within 45 days of your request. Iffeasible, the action on your request will be completed within that period. At the time of your request for services, you received a written notice explaining your right to have action initiated on your application within 45 days. Ifno action has been taken on your request for services by the department within 45 days, you have the right to request a fair hearing, by requesting a hearing within 90 DAYS of the date of your original request for services.
RIGHT TO APPEAL WITHIN 90 DAYS
You have the right to appeal and request a fair hearing with respect to any action or inaction of any state employee or official with regard to your application for Health and Human Services Developmental Disabilities services and their funding. You may appeal if your application for Developmental Disabilities funding is denied or if action on your request has not been initiated upon within 45 days of the date of your request. You may also appeal, if your Developmental Disabilities funding is suspended, reduced, discontinued, or terminated.
If the department has denied your request for services or funding for services, or has taken any other adverse action with respect to services for you, then you (or your representative) have 90 DAYS following the date of the Notice of Decision to appeal the decision and request a fair hearing.
A request to appeal a decision in no way restricts your Service Coordinator from continuing normal Service Coordination activities and implementing changes to your services that are not directly related to the appeal issue.
To file an appeal, you may contact your Developmental Disabilities Service Coordinator at Health and Human Services to request an appeal form. Your worker will explain the appeal procedure and if needed, assist you in completing the appeal form. The appeal request MUST be in writing on the appeal form, and the written form MUST be submitted to the department within 90 days of the date of the decision.
Once you've filed an appeal, arrangements for a hearing will be made and you will be notified of the time and place. You may represent yourself at the hearing, be represented by another person, or be represented by a lawyer chosen by you at your own expense.
INFORMAL DISPUTE RESOLUTION
An Informal Dispute Resolution may be requested prior to or after filing an appeal. Your Service Coordinator can explain this option to you.

Revised 03/09107

DD-SC38

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 66 Date Filed: 08/06/04 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father

)

and natural guardian, William M., et al. )

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES )

FINANCE AND SUPPORT;

)

NEBRASKA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; )

STEPHEN B. CURTISS, in his official )

capacity as the Director of Nebraska

)

Department of Health & Human

)

Services Finance and Support; and

)

RON ROSS, in his official capacity as )

the Director of Nebraska Department )

of Health and Human Services,

)

)

Defendants.

)

4:03CV3189
MEMORANDUM AND ORDER

This is a complex case involving mentally disabled people who receive financial support from Nebraska. Among other things, the plaintiffs allege that the funding (services) they receive from Nebraska is insufficient and thus "discriminatory." It is "discriminatory" because the lack of funds has caused or threatens to cause their institutionalization. See Olmstead v. L.C., 527 U.S. 581 (1999) ("discrimination" under the ADA results from "undue" institutionalization and may result from a lack of funding). The plaintiffs seek only injunctive and declaratory relief.

Case: 4:03-cv-03189-RGK-DLP Document #: 66 Date Filed: 08/06/04 Page 2 of 2
The defendants have moved to dismiss this case asserting, among other things, Eleventh Amendment immunity. Having carefully reviewed the arguments of the defendants, at this stage of the proceeding dismissal would be inappropriate.
Therefore, IT IS ORDERED that the motion to dismiss (filing 30) is denied. DATED this 6th day of August, 2004.
BY THE COURT: s/ Richard G. Kopf United States District Judge
-2-

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

NEBRASKA DEPARTMENT OF HEALTH )

AND HUMAN SERVICES FINANCE

)

AND SUPPORT, et al.,

)

)

Defendants.

)

)

4:03CV3189 REPORT AND RECOMMENDATION

Pending before me is the plaintiffs’ second motion to
certify a class and for appointment of class counsel. Filing
138. The court previously denied certification of a class
defined to include:
All present and future individuals with developmental disabilities in Nebraska who are eligible for Medical Assistance Home and Community-Based Services but either are not receiving funding for such services, or are not receiving sufficient funding for such services to reasonably achieve the purpose of the service, assure the class member’s health and safety, or ensure progress toward independence, interdependence, productivity and community integration.
See filings 86 & 106.

The plaintiffs have since filed a second amended complaint, filing 126. The second amended complaint deletes Marcus J. as a named plaintiff and adds the following named plaintiffs: Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., and Michael R. The second amended complaint, and the plaintiffs’ second motion for class certification, sets forth a different definition for the proposed class. Filing 126 (Second Amended Complaint), ¶ 22.

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 2 of 13
Having reviewed the plaintiffs’ second amended complaint and the parties’ evidentiary submissions, I conclude that the plaintiffs’ second motion for class certification, filing 138, should be denied.
THE PLEADINGS AND EVIDENCE
Class determinations generally involve “considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff's cause of action.’” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982). Although the issues may be “plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim,” it may also be necessary to “probe behind the pleadings before coming to rest on the certification question.” Falcon, 457 U.S. at 160.
The named plaintiffs’ second motion for class certification follows the filing of their second amended complaint. The second amended complaint was filed in response to the Eighth Circuit’s determination that certain claims raised in the amended complaint must be dismissed under the Eleventh Amendment.
In support of their new motion for class certification, the plaintiffs rely on the allegations of the second amended complaint, the affidavits of proposed class counsel, Bruce Mason and David Rowe, (see filing 140), and the evidence offered in support of the plaintiffs’ first motion for class certification. See filing 60. The defendants oppose the plaintiffs’ second motion for class certification, and in support of their position, have submitted a spreadsheet listing the Health and Human
2

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 3 of 13
Services (“HHS”) data pertaining to each of the named plaintiffs. Filing 144, ex. 1.
The plaintiffs’ lawsuit centers on a claim that Nebraska violates federal and state law by failing to properly and lawfully allocate funding to individuals with developmental disabilities who are eligible for Medical Assistance Home- and Community-Based Services. The first amended complaint alleged that Nebraska’s use of a “flawed mechanism for determining the appropriate level of [Home- and Community-based] service for each individual” created inadequate access and a wait list for receipt of such services. Filing 23 (Amended Complaint), ¶ 17. The plaintiffs’ second amended complaint identifies the name of this allegedly flawed methodology as the “Objective Assessment Process” (“OAP”). Filing 126 (Second Amended Complaint), ¶ 22. See also Neb. Rev. Stat. § 83-1216 (2007). Both complaints seek to enjoin the use of this methodology, and to compel Nebraska to use a lawful method when allocating the financial resources for services provided developmentally disabled persons.
The second amended complaint alleges the OAP is used by Nebraska “for determining the level of funding for Home and Community-Based Services which will be provided to each recipient of such services” which, in turn, “effectively determines the amount, duration and scope of the services furnished to Plaintiffs and similarly situated individuals.” Filing 126 (Second Amended Complaint), ¶ 113.1 The named plaintiffs allege
1The plaintiffs’ reply brief explains:
The OAP involves administering a pencil and paper survey known as the Inventory for Client and Agency Planning (“ICAP”). An employee located in the central office of HHS in Lincoln receives a completed ICAP for
3

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 4 of 13
the OAP “is arbitrary, inflexible, excludes necessary input, and routinely results in the under funding of services such that provided Home and Community-Based Services are not sufficient in amount, duration and scope. . . .” Filing 126 (Second Amended Complaint), ¶ 115. They claim the OAP is a “fundamentally flawed” mechanism “incapable of accurately assessing and determining the scope of services for recipients,” and that defendants’ use of this methodology has resulted in unlawful funding restrictions for plaintiffs’ access to home and community-based developmental disability services, and unlawfully long delays in receiving these services. Filing 126 (Second Amended Complaint), ¶ 1. The list of those waiting to receive services is known as the “Register of Persons with Unmet Needs.” Filing 126 (Second Amended Complaint), ¶ 94.
Accordingly, as set forth in the second amended complaint, the plaintiffs’ proposed class is now defined as:
All residents of Nebraska with developmental disabilities who have requested home or community-based services and who either have had the extent of their services determined by the State’s use of the “Objective Assessment Process” (“OAP”) or have been
each applicant for services. That employee computes certain ICAP sub-scale scores, and plugs those sub-scale scores into a formula which in turn yields one specific, bottom-line number. That number represents the dollars which the Defendants will make available to the applicant for home and community-based developmental disability services under the Medicaid waiver for adults with developmental disabilities.
Filing 150 (Plaintiffs’ Reply Brief), p. 3. The plaintiffs do not cite to evidence supporting this statement. However, a brief overview of the OAP is described in the record. See filing 60, ex. 5 (Sorensen deposition), pp. 40-42, 55.
4

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 5 of 13
placed on a wait list (the “Register of Persons with Unmet Needs”) for such services.
Filing 126 (Second Amended Complaint), ¶ 22.
I need not reiterate the distinct disabilities and needs of named plaintiffs Bill M., Heather V., Jane S., Kevin V., and Jennifer T., as that topic was explored and discussed in the court’s prior report and recommendation on plaintiffs’ first motion for class certification. See filing 86 (Report and Recommendation), pp. 9-11. Like the previously named plaintiffs, the new named plaintiffs, Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., and Michael R., have vastly different problems and needs. See filing 143, ex. 1. The named plaintiffs claim that with respect to the allegations set forth in their second amended complaint, their interests are typical of the class they propose to represent because they have all been wait-listed and will be subject to the defendants’ wait list in the future, and they have all had, or will have, the extent of their services determined by the OAP. Filing 126 (Second Amended Complaint), ¶ 26. See also id., ¶¶ 54-90.
As applicable to the defendants’ use of the OAP, the named plaintiffs claim they and the other members of the putative class share the following questions of law and fact: whether the defendants have violated federal Medicaid law, the ADA, and Section 504, as well as applicable state law, by adopting and using the OAP methodology to allocate funding to each eligible individual for their developmental disabilities services when these methodologies are “arbitrary, inflexible, and fail to obtain necessary input, and when those practices routinely result in the under funding of services.” Filing 126 (Second Amended Complaint), ¶¶ 24(d) & 25 (d). See also id., ¶¶ 90-120. With
5

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 6 of 13
respect to the wait-list issue, the common question of law and fact cited is whether the defendants have violated federal Medicaid law, the ADA and Section 504 by adopting and using a practice which fails to timely provide Medicaid-funded community-based services. Filing 126 (Second Amended Complaint), ¶¶ 24(a) & 25(a). See also id., ¶¶ 90-112. Finally, the named plaintiffs claim they and all putative class members share common questions of law and fact concerning whether they are entitled to notice and an opportunity to be heard when Medicaid-funded home or community-based services are denied, and whether the defendants have violated the ADA by failing “to provide individuals who are eligible for developmental disabilities services with such services in the most integrated setting appropriate to them.” Filing 126 (Second Amended Complaint), ¶¶ 24(b & c) & 25(b & c).
In summary, the named plaintiffs argue: [T]he Second Amended Complaint does not seek any individualized relief and does not require any significant factfinding to determine class membership. Rather, class membership is readily apparent from records maintained by Defendant. Those records include the register of persons with unmet needs and records of all persons currently receiving any degree of developmental disability services. All class members have had their services determined by the Defendants’ OAP or have been placed on a wait list for such services. All such class members will be subject to being placed on a wait list and having their services determined by the Defendants’ OAP on any further request for services or a change in the amount of their services. All class members are affected by the Defendants’ two policies in these areas, and all have an interest in ensuring that Defendants’ policies in these areas comply with applicable federal law. The named plaintiffs will be adequate, representative plaintiffs, and all other requirements for certifying a class action are met. The court should certify the class as defined in the Second Amended Complaint.
Filing 150 (Plaintiffs’ Reply Brief), pp. 10-11.
6

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 7 of 13
ANALYSIS
The factual basis, cited case law, and arguments raised on plaintiffs’ second motion for class certification are essentially the same as those raised on the first motion. The amended and second amended complaints seek identical injunctive relief, including an order requiring the defendants to “[a]dopt a sound, valid methodology for properly determining payment levels for Home and Community-Based Services provided to each eligible individual which ensures that each individual will receive a level of service appropriate to their needs.” Filing 23 (Amended Complaint), Prayer for Relief, ¶ E(vi); filing 126 (Second Amended Complaint), Prayer for Relief, ¶ E(vi). Both complaints seek orders declaring that Nebraska’s methodology for allocating funding for Home- and Community-based Services violates federal and state law, and both complaints seek orders compelling the defendants to adopt sound and valid methodologies. Filing 23 (Amended Complaint), Prayer for Relief, ¶¶ H-M; filing 126 (Second Amended Complaint), Prayer for Relief, ¶¶ D, H-K. Though the second amended complaint sets forth a new proposed class definition, the gravamen of the plaintiffs’ claims remains the same.
Therefore, the question before the court is whether the change in plaintiffs’ proposed class definition warrants a change in the court’s ruling on plaintiffs’ motion for class certification. The plaintiffs argue that by changing the definition, they have corrected their previous definition by eliminating the court’s need to conduct factfinding to determine class membership. I agree that this specific problem with the prior proposed definition has been remedied by the new definition. The plaintiffs’ prior definition included persons
7

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 8 of 13
receiving “funding that is ‘insufficient’ to ‘reasonably achieve the purpose of the service’, ‘assure the class member’s health and safety’, or ‘ensure progress toward independence, interdependence, productivity and community integration’ are class members,” (filing 106 (Memorandum and Order), p. 2), with the court left to determine, on a case-by-case basis, whether a specific individual was allegedly denied services due to inadequate funding and was therefore a member of the class. Id.
However, unlike the prior definition, the plaintiffs’ new definition includes persons who are identified on at least one of two lists: the “Register of Persons with Unmet Needs,” and/or the list of those who have been involved in the OAP. The court can ascertain the members of the proposed class by reference to these lists, and without investigating each putative member’s individual circumstances. As such, as described in the second proposed class definition, the identity of the putative class members is sufficiently specific and ascertainable.
However, the newly proposed class definition does not serve to correct the commonality, typicality, and adequacy of representation issues raised by the plaintiffs’ class certification motion. The focus of the plaintiffs’ lawsuit is on Nebraska’s methodology for allocating funding for developmental disability services, and the essence of their claim is that this methodology fails to sufficiently consider all relevant criteria and the individual circumstances of each person applying for services. The plaintiffs have now identified the specific methodology, the OAP, which allegedly serves as a touchstone in denying their rights under federal and state law, and they seek to enjoin Nebraska from using this policy. However, while the OAP is a specifically formulated process, it is nonetheless
8

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 9 of 13
applied on a case-by-case basis to each individual person seeking Home and Community-Based Services. Though the plaintiffs claim the OAP is flawed, arbitrary, and fails to consider all relevant information, they have not identified any specific criteria that are either unlawfully considered or ignored. For example, they do not claim the OAP unlawfully eliminates or hinders delivery of benefits to persons suffering from a specific type of illness or disability, nor do they allege that any discrete criteria must be added or deleted from the OAP for the benefit of all class members. See e.g. Gratz v. Bollinger, 539 U.S. 244, 268 (2003)(upholding class certification where the named plaintiff challenged a university’s use of race as a criterion in undergraduate admissions).
Instead, the named plaintiffs claim that the OAP did not serve to correctly assess their individual circumstances and funding needs, thereby depriving them or delaying their receipt of government benefits, and therefore the OAP itself is fundamentally flawed and invalid as applied to all putative class members, has caused or poses the risk of causing harm to all such persons, and Nebraska’s use of the OAP must be enjoined.
The plaintiffs’ argument is analogous to the “across-theboard” rule rejected in Falcon. As such, they have failed to prove the requisite commonality and typicality for class certification. Applying the principles in Falcon, there is a “wide gap” between the named plaintiffs’ claim that they have been harmed by Nebraska’s method of allocating funding for developmental disability services, and their claim that Nebraska’s OAP harms all developmentally disabled persons who have undergone this process. A similar gap exists between the named plaintiffs’ claim that those putative class members who are
9

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 10 of 13
suffering a similar harm (e.g., being wait-listed for services) share common questions of law and fact such that the named plaintiffs’ claims are presumptively typical of the class as a whole. Falcon, 457 U.S. at 157 (holding that racial discrimination is, by definition, class discrimination, but rejecting class certification for lack of commonality and typicality where the named plaintiffs alleged they were discriminated against in seeking promotions, but failed to show their experience was typical of other employees or that company’s application of its hiring and promotion policy was based, in part, on racial criteria). Though the named plaintiffs challenge the OAP as unlawful under federal and state law, and wish to do so on behalf of all who have been evaluated by that process, “[t]he presence of a common legal theory does not establish typicality when proof of a violation requires individualized inquiry.” Elizabeth M., 458 F.3d at 787.
The named plaintiffs claim they can adequately represent all persons who have undergone the OAP process because their lawsuit seeks a change in policy and not “relief based on the fact the Plaintiffs are receiving less service than they are eligible for.” Filing 150 (Reply Brief), p. 6. The named plaintiffs are a highly diverse group with diverse needs, and the class they propose to represent will include an even more diverse population.
Named plaintiffs who seek to represent a class must show: (1) they and their attorneys are able and willing to prosecute the action competently and vigorously, and (2) each representative’s interests are sufficiently similar to those of the class such that it is unlikely that their goals and
10

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 11 of 13
viewpoints will diverge. Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Caroline C. By and Through Carter v. Johnson, 174 F.R.D. 452, 466 (D. Neb. 1996). Though the named plaintiffs’ litigation is focused on securing rights for all putative class members, it is very unlikely that the named plaintiffs’ perception of what is fair and relevant in the funding process would be uniformly endorsed by those unnamed class members who have significantly different needs.2 Despite the assistance of their diligent, motivated, and highly competent proposed class counsel, the named plaintiffs may simply never be able to fully present to the court all the circumstances and needs faced by all these putative class members in advocating to enjoin the OAP and compel an appropriate replacement process.3 Accordingly, it is
2The increased specificity in the new class definition highlights the adequacy of representation issue. Unlike the first proposed definition, the new class definition does not limit the class members to those whose services are underfunded. The second proposed class includes everyone who has received a funding determination through the OAP. Therefore, the proposed class as now defined may include putative class members who, if given the opportunity, would advocate for the status quo because they are satisfied with the funding currently provided, are receiving services, and do not want the State’s funding allocation method to be changed.
3Likewise, a court cannot issue opinions based on a hypothetical set of facts, nor ascertain the interests of those not before the court, nor accurately anticipate potential future events that may require court intervention.
The federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, “concrete legal issues, presented in actual cases, not abstractions,” are requisite. This is as true of declaratory judgments as any other field.
KCCP Trust v. City of North Kansas City, 432 F.3d 897, 899 (8th Cir. 2005).
11

Case: 4:03-cv-03189-RGK-DLP Document #: 153 Date Filed: 06/22/07 Page 12 of 13
foreseeable that the outcome of the named plaintiffs’ zealous attempt to represent the differing needs of such a diverse group will inadvertently result in a funding allocation method that, when applied, decreases rather than increases funding for some putative class members. Under such circumstances, the named plaintiffs cannot adequately represent all putative class members. The named plaintiffs lack standing to represent those putative class members with dissimilar needs and interests in this litigation. See e.g. Blum v. Yaretsky, 457 U.S. 991, 996 n. 7, 1001-02 (1982)(holding that named plaintiffs who claimed they were threatened with transfers to lower levels of Medicaid-funded care based on state “Utilization Review Committee” (“URC”) findings that were allegedly arbitrary and based on inadequate criteria lacked standing to represent absent class members challenging URC-transfers to higher levels of care).
The plaintiffs’ lawsuit seeks declaratory and injunctive relief and class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Any prospective relief ordered may impact the putative class plaintiffs’ living conditions and access to community resources for a lifetime. The court must always diligently consider the potential unfairness to unnamed class members who will bound by a judgment if the putative class lacks commonality and is overbroad. Falcon, 457 U.S. at 157. See also In re St. Jude Medical, Inc., 425 F.3d 1116, 1121 (8th Cir. 2005)(“Because ‘unnamed members are bound by the action without the opportunity to opt out’ of a Rule 23(b)(2) class, even greater cohesiveness generally is required than in a Rule 23(b)(3) class.”).
“[B]efore certifying a class seeking broad injunctive relief against a state agency, a district court must ensure that it has
12

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Article III jurisdiction to entertain each claim asserted by the named plaintiffs . . ., [a]nd the court must conduct a ‘rigorous analysis’ to ensure that the prerequisites of Rule 23 are satisfied.” Elizabeth M., 458 F.3d at 784 (citing Falcon, 457 U.S. at 161). Having evaluated the facts and allegations presented in this case, both now and on plaintiffs’ prior motion for class certification, I conclude the plaintiffs’ proposed class lacks sufficient commonality for class certification, and the named plaintiffs have failed to show that their interests are typical of the class as a whole. I further conclude that the diverse circumstances and the potentially divergent interests of the putative class members undermine the ability of the named plaintiffs to adequately and fairly represent the interests of the proposed class.
IT THEREFORE HEREBY IS RECOMMENDED to the Honorable Richard G. Kopf, United States District Judge, pursuant to 28 U.S.C. § 636(b) that the plaintiffs’ motion to certify a class, filing 138, be denied.
The parties are notified that a failure to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court’s adoption of the recommendation.
DATED this 22nd day of June, 2007.
BY THE COURT:
s/ David L. Piester
David L. Piester United States Magistrate Judge
13

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 154 Date Filed: 07/17/07 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father )

and natural guardian, William M., et al. )

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES )

FINANCE AND SUPPORT, et. al., )

)

Defendants.

)

4:03CV3189
MEMORANDUM AND ORDER

This matter is before the court on the Magistrate Judge’s Report and Recommendation (filing 153) recommending denial of the pending motion for class certification and appointment of class counsel (filing 138). No objections to the recommendation have been filed.
I have reviewed the Magistrate Judge’s Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and NECivR 72.3. I find that the Report and Recommendation should be adopted. Inasmuch as Judge Piester has fully, carefully, and correctly found the facts and applied the law, I need only state that Plaintiffs’ motion for class certification and appointment of class counsel (filing 138) should be denied in all respects.
IT IS ORDERED:
1. The Magistrate Judge’s Report and Recommendation (filing 153) is adopted; and

Case: 4:03-cv-03189-RGK-DLP Document #: 154 Date Filed: 07/17/07 Page 2 of 2

2. Plaintiffs’ motion for class certification and appointment of class counsel (filing 138) is denied.

July 17, 2007.

BY THE COURT:
s/Richard G. Kopf United States District Judge

-2-

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 135 Date Filed: 08/17/06 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., et al,

)

)

Plaintiffs,

)

)

v.

)

)

NEBRASKA DEPARTMENT OF )

HEALTH AND HUMAN SERVICES )

FINANCE AND SUPPORT, STEPHEN )

B. CURTISS, et al.,

)

)

Defendants.

)

CASE NO. 4:03CV3189
DEFENDANTS’ ANSWER TO SECOND AMENDED COMPLAINT

COME NOW the Defendants and in answer to the Plaintiffs’ Second Amended

Complaint hereby admit, deny, and allege as follows:

1. Paragraph 1 of Plaintiffs’ Second Amended Complaint is a

characterization of their action such that a response should not be required, but to the

extent that a response is required, the Defendants hereby deny.

2. The Defendants admit that the Court has jurisdiction over the claims

presented in the Second Amended Complaint and that venue is proper. The

Defendants hereby deny the remaining allegations of Paragraphs 2-4 of the Second

Amended Complaint.

3. The Defendants hereby admit Paragraphs 5-16 of the Second Amended

Complaint.

4. Paragraphs 17-20 of the Second Amended Complaint are

characterizations of the Defendants to which a response should not be required, but to

the extent that a response is required, the Defendants hereby deny.

Case: 4:03-cv-03189-RGK-DLP Document #: 135 Date Filed: 08/17/06 Page 2 of 6
5. The Defendants deny Paragraphs 21-29 of the Second Amended Complaint.
6. Paragraphs 30-53 constitute Plaintiffs’ characterization of various state and federal laws, and do not constitute a short and plain statement of the Plaintiffs’ claim showing that the Plaintiffs are entitled to relief. Therefore, pursuant to Fed. R. Civ. P. 8(a), these paragraphs do not require an answer. To the extent that an answer is required, Defendants hereby deny Paragraphs 30-53 of the Second Amended Complaint.
7. The Defendants hereby admit Paragraphs 54-89 of the Second Amended Complaint.
8. Paragraph 90 is an incorporation by reference of the previous 89 paragraphs of the Second Amended Complaint. The Defendants hereby incorporate by this reference our previously stated responses to Paragraphs 1-89 as our response to Paragraph 90.
9. The Defendants hereby admit Paragraphs 91 and 92 of the Second Amended Complaint.
10. The Defendants hereby deny Paragraphs 93-98 of the Second Amended Complaint.
11. Paragraph 99 of the Second Amended Complaint is an incorporation by reference of the previous Paragraphs 1-98. In answer to Paragraph 99, Defendants hereby incorporate by reference our previous responses to Paragraphs 1-98 set forth above.
2

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12. The Defendants hereby admit Paragraphs 100-102 of the Second Amended Complaint.
13. As to Paragraph 103, the Defendants hereby admit that the Plaintiffs treating professionals considered community-based placement to be appropriate for Plaintiffs. The Defendants deny the balance of the averments of Paragraph 103 of the Second Amended Complaint.
14. The Defendants hereby deny Paragraphs 104-106 of the Second Amended Complaint.
15. Paragraph 107 is an incorporation by reference of the previous Paragraphs 1-89 of the Second Amended Complaint. The Defendants respond to Paragraph 107 by incorporating our previous responses to Paragraphs 1-89 as set forth above.
16. As to Paragraph 108, the Defendants hereby admit that the Plaintiffs have requested ICF/MR or Home and Community-Based Services from their NDHHS service coordinators and that they are eligible for some suc h specific services but deny that they all necessarily are eligible for all requested services.
17. The Defendants hereby deny Paragraphs 109-112 of the Second Amended Complaint.
18. As to Paragraph 113 of the Second Amended Complaint, the Defendants admit that Defendant Montanez has current administrative responsibility and authority over a methodology known as the Objective Assessment Process (OAP) for determining the level of funding for Home and Community-Based Services which will be provided to each recipient of said services and that this level of funding effectively
3

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determines the amount, duration, and scope of services furnished to the Plaintiffs and similarly situated individuals until or unless said service levels are adjusted based on currently existing program policies or changed needs for said individuals. Defendants hereby deny that Defendant Nelson has any role or responsibility adopting or administering said methodology since that authority is primarily placed by state law with Director Montanez pursuant to Neb. Rev. Stat. § 83-1209(3). The Defendants further allege that most of the current OAP methodology was actually adopted prior to the arrival of Directors Nelson and Montanez within the Health and Human Services System of the State of Nebraska.
19. Defendants hereby deny Paragraphs 114-116 of the Second Amended Complaint.
20. As to Paragraph 117 of the Second Amended Complaint, the Defendants hereby incorporate by this reference our response to Paragraph 113 above.
21. Defendants hereby deny Paragraphs 118-120 of the Second Amended Complaint.
22. As to Paragraph 121 of the Second Amended Complaint, the Defendants are unable to specifically respond because of the vague, imprecise language of the allegations, specifically “many of them” and “many of those similarly situated,” but to the extent a response is required, the Defendants hereby deny. Defendants further allege that the Plaintiffs are on notice of a right to appeal pursuant to state law, specifically Neb. Rev. Stat. § 83-1219 and the related regulations, 205 NAC 2-005, and that current written notices provided to clients or client representatives contain a statement of the right of appeal. The Defendants further deny that all Plaintiffs were denied a hearing as
4

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to their eligibility and /or level of services and allege that two or more of the named
Plaintiffs have had administrative appeal hearings.
23. The Defendants hereby deny Paragraphs 122-123 of the Second Amended Complaint.
24. The balance of the Second Amended Complaint is a series of requests for
relief with no averments or fact such that a response should not be required, but to the
extent that a response is required, the Defendants hereby deny the balance of the
Second Amended Complaint. 25. The Defendants further allege that none of the named Plaintiffs reside in
an institution or nursing home, that none of them are under imminent threat of having to
move to an institution or nursing home, and that all of them live and receive their
program services in the community.
WHEREFORE the Defendants respectfully request that the Court dismiss Plaintiffs’ Second Amended Complaint with prejudice at the Plaintiffs’ cost.
DATED this 17th day of August, 2006.
NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT, et al., Defendants,
BY JON BRUNING, #20351 Attorney General
BY s/Michael J. Rumbaugh Michael J. Rumbaugh, #13612 Assistant Attorney General 1221 N Street, Suite 500 Lincoln, NE 68508 Tel: (402) 471-2989 Fax: (402) 471-4725 mike.rumbaugh@ago.ne.gov
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Case: 4:03-cv-03189-RGK-DLP Document #: 135 Date Filed: 08/17/06 Page 6 of 6

and
David B. McGath Special Asst. Attorney General Dept. of Health and Human Services P.O. Box 98914 Lincoln, NE 68509-8914 Tel: (402) 471-7241 david.mcgath@hhss.ne.gov
Attorneys for Defendants.
CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2006, I electronically filed the foregoing with
the clerk of the court using the CM/ECF system which sent notification of such filing to
the following: Dianne D. DeLair, Douglas D Dexter, Bradford E. Kistler, Bruce G.
Mason, Shirley A. Mora James, David W. Rowe, and Michael J. Rumbaugh.

56-268-1 8

s/Michael J. Rumbaugh Michael J. Rumbaugh Assistant Attorney General

6

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 172 Date Filed: 04/09/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father and )

natural guardian, William M.; JOHN DOE, by )

and through his mother and natural guardian, )

Jane Doe; HEATHER V., by and through her )

mother and guardian, Marcia V.; JANE S.; )

KEVIN V., by and through his legal guardian )

Kathy V.; JENNIFER T., by and through her )

legal guardians, Sharon and Greg T.; LESLIE )

H.; CATHERINE M.; STEPHANIE B.; )

CONRAD J., by and through his legal )

guardian, C.W. J.; CHRISTOPHER H., by )

and through his legal guardian, Sue H.; )

MICHAEL R., by and through his legal )

guardian, Susan R.; and on behalf of )

themselves and all other persons similarly )

situated,

)

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF HEALTH )

AND HUMAN SERVICES FINANCE AND )

SUPPORT, NEBRASKA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

RICHARD NELSON, in his official capacity )

as the Director of Nebraska Department of )

Health & Human Services Finance and )

Support; and NANCY MONTANEZ, in her )

official capacity as the Director of Nebraska )

Department of Health & Human Services, )

)

Defendants.

)

Case No. 4:03CV3189
MEMORANDUM AND ORDER

The parties have filed a “Joint Motion and Stipulation for Approval of Settlement” (filing 171). They ask me to “approve” the settlement agreement.

I am willing to grant the motion and “approve” the stipulation and related settlement agreement with the following understanding:

Case: 4:03-cv-03189-RGK-DLP Document #: 172 Date Filed: 04/09/08 Page 2 of 3
(1) I make no determination that the settlement agreement is good or bad or fair or unfair.
(2) With the exception that I will resolve the attorney fee question as contemplated by the settlement agreement, I retain no jurisdiction to enforce or construe the settlement agreement in the future. Furthermore, my “approval” of the settlement agreement does not suggest that there would later be federal jurisdiction to construe or enforce the terms of the settlement agreement. In other words, the settlement agreement is merely a contract between the parties and my “approval” of it confers no other status.
(3) Plaintiffs’ counsel will be understood to have represented to me that each person signing the settlement agreement for a disabled person has the authority to do so.
With the foregoing in mind,
IT IS ORDERED that:
1. No later than the close of business on April 17, 2008, a lawyer for the plaintiffs shall file in the court file a response making one of the two statements described below:
A. Having read the Court’s memorandum and order of April 9, 2008, the plaintiffs request the court to grant the joint motion and stipulation for approval of settlement appearing at filing 171.
B. Having read the Court’s memorandum and order of April 9, 2008, the plaintiffs request the court to deny the joint motion and stipulation for approval of settlement appearing at filing 171 .
2. No later than the close of business on April 17, 2008, a lawyer for the defendants shall file in the court file a response making one of the two statements described below:
-2-

Case: 4:03-cv-03189-RGK-DLP Document #: 172 Date Filed: 04/09/08 Page 3 of 3

A. Having read the Court’s memorandum and order of April 9, 2008, the defendants request the court to grant the joint motion and stipulation for approval of settlement appearing at filing 171.

B. Having read the Court’s memorandum and order of April 9, 2008, the defendants request the court to deny the joint motion and stipulation for approval of settlement appearing at filing 171 .

3. Failure to timely comply with this memorandum and order may result in the imposition of sanctions including, but not limited to, those detailed in Federal Rule of Civil Procedure 37(b)(2).

April 9, 2008.

BY THE COURT:
s/Richard G. Kopf United States District Judge

-3-

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 86 Date Filed: 06/20/05 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., JOHN DOE, HEATHER

)

V., JANE S., KEVIN V.,

)

JENNIFER T., WILLIAM M., JANE )

DOE, MARCIA V., PATRICIA S., )

KATHY V., SHARON T., and GREG )

T.,

)

)

Plaintiffs,

)

)

V.

)

)

NEBRASKA DEPARTMENT OF HEALTH )

AND HUMAN SERVICES FINANCE

)

AND SUPPORT, NEBRASKA

)

DEPARTMENT OF HEALTH & HUMAN )

SERVICES, STEPHEN B. CURTISS, )

and RON ROSS,

)

)

Defendants.

)

)

4:03CV3189 REPORT AND RECOMMENDATION

The plaintiffs have filed a motion to certify a class to include:

all present and future individuals with developmental disabilities in Nebraska who are eligible for Medical Assistance Home and Community-Based Services but either are not receiving funding for such services, or are not receiving sufficient funding for such services to reasonably achieve the purpose of the service, assure the class member’s health and safety, or ensure progress toward independence, interdependence, productivity and community integration.
Filing 58. The named plaintiffs claim over fourteen hundred
people are on a list of persons with unmet needs maintained by
the State of Nebraska. They claim that the named State of
Nebraska agencies and the individual defendants (collectively
referred to hereafter as the “State”) use an improper mechanism
to determine the level of service the state will fund for each
disabled person and that, as a result, a large percentage of

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these persons receive inadequate services. The plaintiffs request declaratory and injunctive relief and claim the defendants have violated 29 U.S.C. § 794 (Section 504 of the Rehabilitation Act of 1973)(second claim for relief); the Medicaid Act and federal Medicaid regulations (third, fourth, and fifth claims for relief); and the Nebraska Constitution, statutes, and regulations (sixth, seventh, and eighth claims for relief).1
A plaintiff moving for class certification has the burden of showing that the class should be certified and that the requirements of Rule 23 of the Federal Rules of Civil Procedure are met. Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999, 1004 (8th Cir. 2004); Coleman v. Watt, 40 F.3d 255, 258-59 (8th Cir. 1994). As explained hereafter, upon review of the evidence and pleadings, I conclude that the class proposed by the named plaintiffs lacks a concise and exact definition, and that the plaintiffs have failed to prove the requirements of Rule 23(a)(2)(3) and (4). Therefore, their motion for class certification should be denied.
A. Class definition.
The plaintiffs’ proposed class is broadly defined to include “all present and future individuals with developmental disabilities in Nebraska who are eligible for Medical Assistance Home and Community-Based Services” who are not receiving services due to insufficient funding. The plaintiffs have submitted into
1The Eighth Circuit has dismissed the plaintiffs’ claim based on Title II of the ADA (plaintiffs’ first claim for relief) on the basis of sovereign immunity. Bill M. ex rel. William M. v. Nebraska Dept. of Health and Human Services Finance and Support, 2005 WL 1250598 (8th Cir. May 27, 2005).
2

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evidence the state’s registry of service requests–-a listing of all developmentally disabled persons who have requested and are eligible for services (hereinafter referred to as the Registry”). This list, also called the “wait list,” provides the date when the requesting party wants the service to begin. Based on historical averages, approximately two-thirds of the persons listed have past due (over ninety days) needs which have not been met. The May 2003 Registry lists the names of over one thousand persons, (1,433 by plaintiffs’ count), with past due needs. The proposed class would also include up to 2,200 persons with developmental disabilities who are receiving community-based services which the plaintiffs claim are either inadequate or are at risk of being reduced to an inadequate level. Filing 60, ex. 2 (Stortenbecker deposition) at 93-106; ex. 3 (Service Requests list); ex. 5 (Sorensen deposition) at 47-51.
A class must be capable of a concise and exact definition without resorting to court rulings to determine whether someone is a member. Fuzie v. Manor Care, Inc., 461 F. Supp. 689, 700 (D.C. Ohio 1977). The class definition proffered by the named plaintiffs is not limited to persons identified on the Registry (which is also consistently modified and updated), but includes unnamed persons who claim to be eligible but who have been determined by the State to be ineligible for services, as well as any future eligible persons. Since eligibility for services requires an individualized assessment of each disabled person, the proposed class definition requires a factual determination of who is eligible for services. Therefore, before an adequate determination can be made of who is a class member, this court would be required to decide that a particular person was eligible for Medical Assistance Home and Community-Based Services at the time this suit was filed or, in the case of any injunctive
3

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relief, whether “future” persons seeking to enforce or avoid the injunction are eligible for services. Since the class is also limited to those who are not receiving services due to lack of funding (as opposed to, for example, lack of community manpower), the court would also have to determine if the failure to provide services was due to lack of funding.
The plaintiffs’ proffered class definition essentially eliminates the court’s ability to craft a declaratory judgment or a sufficiently specific injunction that would be binding on and capable of being enforced against both parties to this litigation without substantial on-going court supervision and intervention. Allowing a loosely defined and amorphous plaintiff class creates, in essence, a “fail-safe” class–“a class which would be bound by only a judgment favorable to the plaintiffs but not by an adverse judgment.” Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980)(quoting Dafforn v. Rousseau Associates, Inc., 1976-2 Trade Cases P 61,219 (N.D. Ind. 1976). “In summary, the proposed class of plaintiffs is so highly diverse and so difficult to identify that it is not adequately defined or nearly ascertainable. Hence, for that reason, the plaintiff class cannot be maintained.” Adashunas, 626 F.2d at 603-04 (refusing to certify a class consisting of “all children within the State of Indiana entitled to a public education who have learning disabilities who are not properly identified and/or who are not receiving such special instruction as to guarantee them of minimally adequate education”). See also Metcalf, supra. (refusing to certify a class consisting of public aid recipients who were allegedly denied a livelihood compatible with health and well-being in violation of state statutory law); Fuzie, supra.(refusing to certify a class composed of all Medicaid patients who were
4

Case: 4:03-cv-03189-RGK-DLP Document #: 86 Date Filed: 06/20/05 Page 5 of 15
discharged from a nursing home “because they were Medicaid recipients”).2
I therefore conclude that the proposed plaintiff class lacks a sufficiently concise and exact definition, and the class should not be certified.
B. Rule 23 of the Federal Rules of Civil Procedure.
Under Rule 23(a), one or more members of a class may sue or be sued as representative parties on behalf of all class members if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
2Although not addressed by the parties on this motion, the broad and inexact class definition proposed also raises questions of standing.
[S]ince the proposed class is so amorphous and diverse, it cannot be reasonably clear that the proposed class members have all suffered a constitutional or statutory violation warranting some relief. If the conceived injury is abstract, conjectural or hypothetical as here, instead of real, immediate or direct [harm or threat of harm], the complaint fails to cite an actual case or controversy under Article III of the Constitution.
Adashunas, 626 F.2d at 604. Although the Eighth Circuit’s decision on interlocutory appeal addressed the issue of standing as to the named plaintiffs, the issue of standing for the proposed class was not raised or decided. Bill M. ex rel. William M. v. Nebraska Dept. of Health and Human Services Finance and Support, 2005 WL 1250598 (8th Cir. May 27, 2005).
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(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and, (4) the representative parties will fairly and adequately protect the interests of the class.
Id. These prerequisites for class certification under Rule 23(a) are commonly referred to as “numerosity, commonality, typicality, and adequacy of representation." General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980).
In addition to the four requirements of Rule 23(a), the plaintiffs must also satisfy at least one of the requirements of Rule 23(b). Parke, 368 F.3d at 1004. The plaintiffs herein seek class certification under Rule 23(b)(2). They argue “the Defendants have acted or refused to act on grounds generally applicable to the class as a whole, thereby making final injunctive relief or corresponding declaratory relief with respect to the class as a whole an appropriate remedy.” Filing 58, ¶ 3. "If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2)." DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1175 (8th Cir. 1995)(citing 7A Wright, Miller & Marcus, Federal Practice and Procedure § 1775 (2d 1994)). Accordingly, I shall first address whether the plaintiffs have proved the four requirements of Rule 23(a).
In determining whether the plaintiffs have met their burden of proof for class certification, the court considers the pleadings and any evidence presented by the parties. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).
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Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.
Falcon, 457 U.S. at 160. Although a class determination “generally involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiff's cause of action,'" (General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982)(citing Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)), the court’s determination is made without regard to the factual merits or weaknesses of plaintiffs' underlying claims. Eisen, 417 U.S. at 177-78. When deciding a motion for class certification, the court accepts the allegations contained in the complaint as true. Blades v. Monsanto Co., 400 F.3d 562, 566-67 (8th Cir. 2005); In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir. 1982); Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978).
1. Rule 23(a)(1): Numerosity.
Rule 23(a)(1) requires the court to determine whether the proposed class is so large in number that joinder of all members is impractical. Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir. 1983). Based on the Registry and deposition testimony submitted into evidence, I conclude the plaintiffs have proved the Rule 23(a)(1) requirement. As stated by the plaintiffs, “[t]his class includes approximately 1,400 persons who have been waiting for services for which they are eligible for over 90 days and up to 2,200 persons with developmental disabilities who are receiving community-based services, which are either inadequate or are at
7

Case: 4:03-cv-03189-RGK-DLP Document #: 86 Date Filed: 06/20/05 Page 8 of 15
risk of having their services reduced to an inadequate level.” Filing 59 (plaintiffs’ brief) at p. 6. The proposed class is very large and joinder of all members is impractical.
2. Rule 23(a)(2)(3) and (4): Commonality, typicality, and Adequacy of Representation.
The requirements of Rule 23(a)(2)(3) and (4), also known as commonality, typicality, and adequacy of representation, are interrelated.
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.
Falcon, 457 U.S. at 158 n. 13.
The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999); Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997); Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). Proving typicality requires demonstrating that the members of the proposed class have the same or similar grievances as the named plaintiffs. Paxton v. Union Nat'l Bank, 688 F.2d 552, 562 (8th Cir. 1982). Adequacy of representation focuses on two issues: (1) whether the named plaintiffs who seek authority to be class representatives have common interests with the class members;
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and, (2) whether these proposed class representatives will vigorously prosecute the interests of the class. Paxton, 688 F.2d at 562-63.
Evaluating commonality requires assessing the specific facts presented for the court’s review and determining whether common issues of law and fact exist among the plaintiffs. There are seven named plaintiffs in this case. As alleged in the plaintiffs’ amended complaint, each named plaintiff is developmentally disabled and at least twenty-one years old. The plaintiffs all claim they need services and their needs are inadequately met or completely unmet due to inadequate funding and improper administration of legally-mandated programs. They all claim the State’s actions and failure to act violate the federal Rehabilitation Act of 1973, Medicaid statutes and regulations, and Nebraska constitutional, statutory and regulatory law.
More specifically, the named plaintiffs’ claims, as alleged in the amended complaint, are as follows:
• Bill M. lives with his father. He has behavioral issues that lead to conflict, including occasional fights involving pinching, hitting, or kicking, between him and his father or other family members. John Doe lives with his parents; is hyperactive and does not sleep at night; and disrupts others’ lives by making phone calls during the night, entering their homes without consent, and engaging in inappropriate physical conduct. Both Bill M. and John Doe claim they need placement in a community residential facility with specially trained staff because they cannot be adequately cared for and supervised at home; they are at risk of being placed in a more restrictive setting; and they have been indefinitely placed on the State’s “wait list”--the “registry of people with unmet needs.” Filing 23, Amended Complaint, ¶¶ 48-59.
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• Heather V. has substantial cognitive and physical disabilities. She is legally blind; experiences periodic grand mal seizures; suffers from hallucinations and delusions; is non-ambulatory; cannot feed herself or care for her own hygiene; and is on numerous medications. She lives in a group home. She does not claim she is at risk of being placed in an unduly restrictive setting or that she is on a “wait list.” She claims the State has refused to approve sufficient day service hours to ensure her health and safety or provide adequate habilitation. She claims the State’s evaluation of her needs was improperly based on computer calculations and equations, and not a valid and individualized assessment of her disabilities. Filing 23, Amended Complaint, ¶¶ 60-77.
• Jane S. suffers from autism and obsessive-compulsive disorder. She lives in an apartment in the lower level of her mother’s home. Before moving to Nebraska, she worked full-time for a thrift store. Since moving to Nebraska, she has received vocational-related day services, but not on a full-time basis and in a structured enclave setting. She essentially claims she is underemployed; that she is capable of working fulltime and performing more challenging work, but the State has refused to approve the required additional service hours for her to work and live up to her potential. Filing 23, Amended Complaint, ¶¶ 78-83.
• Kevin V. has autism, epilepsy, and severe to profound mental retardation. He receives “services under the Waiver Program,” the exact nature of which is unknown, and alleges he needs one-to-one supervision due to his extensive history of aggressive and disruptive behaviors. He claims the state denied one-to-one funding and, as a result, his former provider could no longer offer him services. He claims he was transferred to a different service provider, who provides 173 hours of one-to-one level services without commensurate funding from the State. Filing 23, Amended Complaint, ¶¶ 84-91.
• Jennifer T. has epilepsy and severe to profound mental retardation and, except in the area of motor skills, functions at the level of a three-year old. Jennifer T. needs a highly structured day program with one-toone supervision, and not vocational services. She
10

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needs 173 service hours to ensure her health and safety. However, the State approved only 97 service hours based on a “blind application” of a “mechanical process” rather than a proper assessment of her actual disabilities and needs. Despite not being commensurately paid, her service provider provides 173 hours of one-on-one day service each month. Filing 23, Amended Complaint, ¶¶ 93-99.
• Marcus J. lived at home and was home-schooled until his mother became seriously ill in February 2003. The State assessed him at that time and determined he was eligible for 99 hours of assisted day services. On May 1, 2003, he was placed in a nursing home to provide temporary thirty-day respite care while his mother was ill. He still lives in the nursing home but claims he needs a less restrictive placement in a residential facility adequately staffed by persons trained to work with individuals with developmental disabilities. Funding for this placement was denied and he was placed on the Registry for Needs. Filing 23, Amended Complaint, ¶¶ 100-109.
The diverse situations of the named plaintiffs reflect there is no sufficiently discrete question of fact common to the class. Some claim they have not been properly assessed by the State; others do not challenge the assessment but the services have been denied for lack of funding. Some claim they have been indefinitely placed on a “wait list” of persons with unmet needs; others claim the State fails and refuses to recognize the extent of their needs. Some claim they are at risk of being placed in an overly restrictive institutionalized facility; others claim they are already subjected to overly restrictive job or residential placements; and still others claim they need more one-on-one supervision and service hours.
The named plaintiffs essentially share one legal grievance: they claim they have been denied legally-mandated services because the State either denies or improperly administers these
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services due to lack of funding. While the commonality requirement deals with shared questions of law or fact, and the plaintiffs need not have identical backgrounds so long as there is a common question of law, not every common question will suffice. “[A]t a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. What we are looking for is a common issue the resolution of which will advance the litigation.” Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998).
A generalized claim for injunctive and declaratory relief to remedy alleged systematic failures in a state’s delivery of legally-mandated services does not present a sufficient “common question of law or fact” for the purposes of Rule 23(a)(2). J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (upholding court’s finding of no commonality and its refusal to certify a class consisting of mentally or developmentally disabled children who sought declaratory and injunctive relief based on the state’s alleged failure to provide services required by federal law).
We refuse to read an allegation of systematic failures as a moniker for meeting the class action requirements. Rule 23(a) requires a common question of law or fact. For a common question of law to exist, the putative class must share a discrete legal question of some kind.
J.B. ex rel. Hart, 186 F.3d at 1289. “When the resolution of a common legal issue is dependent on factual determinations that will be different for each putative class plaintiff, class certification must be denied.” Reinholdson v. State of Minnesota, 2002 WL 31026580, *8 (D. Minn. Sept. 9, 2002)(denying class certification for lack of commonality where disabled
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students claimed the state violates the Individuals with Disabilities Education Act ("IDEA") by failing to formulate an individualized education plan ("IEP") tailored to the disabled child's unique needs).
The diversity of the proposed class also militates against finding that the plaintiffs have proved that their claims are representative of the class members’ claims. In addition to case management, the needs listed on the Registry range from supported (continuous supervision) to assisted (intermittent supervision) day services, residential services, and vocational services. The listing also includes requests for temporary respite care, and evaluation of or assistance with home or nursing home care. Filing 60, ex. 2 (Stortenbecker deposition) at 93-106; ex. 3 (Service Requests list). Since highly case-specific circumstances apply to each disabled person, I cannot conclude that the claims of the seven named plaintiffs are typical of the claims of the over 1400 persons they propose to represent. In fact, the diverse needs identified in the Registry serve to further support my opinion that any claims by disabled persons identified therein should evaluated as on an individual basis and not on the basis of class membership.
Finally, the diversity of needs within the proposed class raises questions concerning whether the seven named plaintiffs can adequately represent the interests of the class throughout this litigation. The court is under an obligation to pay careful attention to the Rule 23(a)(4) prerequisite in every case. Vervaecke v. Chiles, Heider & Co., Inc., 578 F.2d 713, 719 (8th Cir. 1978). Adequate representation of all class members is of critical importance, and perhaps especially so in cases pursuing class certification under Rule 23(b)(2) because class members are
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not permitted to “opt-out" of the class. Paxton, 688 F.2d at 558-59.
The primary issue raised in this case is the State’s alleged failure to adequately fund services for disabled adults. Money is, unfortunately, a finite commodity. The court does not question that at this point in time, the named plaintiffs stand willing to advocate on behalf of all class members on the broadly defined issue of funding legally-mandated programs for the disabled. But the alleged unmet needs of the proposed class are so diverse and the legal and regulatory issues so multifaceted that conflicts of interest are foreseeable between the named plaintiffs and other class members. For example, if the State agreed to settle this case by funding vocational services but not community residential facilities, or even advocated that the law supported, at most, this result, the interests of Bill M. and John Doe (who have community residential facility needs) would conflict with the interests of Jane S. and all other members of the class with vocational needs.
To be given the authority to represent a class, a named plaintiff must also have the ability and willingness to vigorously prosecute the interests of the class with the assistance of qualified counsel. Paxton v. Union Nat'l Bank, 688 F.2d 552 (8th Cir. 1982). Based on the court’s past experiences with the proposed class counsel and their affidavits of record (filing 60, ex. 6 (Rowe affidavit); ex. 4 (Mason affidavit)), I find that the proposed counsel are able, willing, and motivated to zealously represent the class. However, the obligation to provide adequate representation does not rest solely with counsel; the named plaintiffs as proposed class representatives have a substantial responsibility. The lack of common interests
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between the named plaintiffs as proposed class representatives and the class, and the foreseeable risk that conflicts of interest may arise, warrants finding that the named plaintiffs have failed to prove they can adequately represent the class as required under Rule 23(a)(4).3
For all the foregoing reasons, I shall therefore recommend denial of the plaintiffs’ motion to certify a class.
IT THEREFORE HEREBY IS RECOMMENDED to the Honorable Richard G. Kopf, United States District Judge, pursuant to 28 U.S.C. § 636(b) that the plaintiffs’ motion to certify a class, filing 58, be denied in all respects.
The parties are notified that a failure to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court’s adoption of the recommendation.
DATED this 20th day of June, 2005.
BY THE COURT:
S/ David L. Piester
David L. Piester United States Magistrate Judge
3The plaintiffs have not proposed, and I have not considered, whether a class action could be pursued by creating subclasses within the class.
15

 
 Case: 4:03-cv-03189-RGK-DLP Document #: 106 Date Filed: 09/08/05 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BILL M., by and through his father )

and natural guardian, William M., et al. )

)

Plaintiffs,

)

)

vs.

)

)

NEBRASKA DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES )

FINANCE AND SUPPORT, et. al., )

)

Defendants.

)

4:03CV3189
MEMORANDUM AND ORDER

This matter is before the court on the Magistrate Judge's Report and Recommendation (filing 86), the Plaintiffs’ objection to such Report and Recommendation (filing 96), and briefs of the parties (Pls.’ Br. in Supp. of Obj. (filing 97), Defs.’ Br. in Opp’n to Obj. (filing 99)), filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NECivR 72.4.
I have conducted, pursuant to 28 U.S.C. § 636(b)(1) and NECivR 72.4, a de novo review of the portions of the Report and Recommendation to which objections have been made. I find that the Report and Recommendation should be adopted. Inasmuch as Judge Piester has fully, carefully, and correctly found the facts and applied the law, I need only state that Plaintiffs’ motion for class certification and appointment of class counsel (filing 58) should be denied in all respects.
Judge Piester concludes that the proposed class “lacks a concise and exact definition . . . .” (Filing 86 at 2.) He notes that the proffered class definition includes persons identified on the Registry1, which is an ever-changing group as the Registry

1Capitalized terms have the meanings ascribed in the Report and Recommendation (filing 86).

Case: 4:03-cv-03189-RGK-DLP Document #: 106 Date Filed: 09/08/05 Page 2 of 3
is consistently modified and updated. Judge Piester apparently considered the proposed class to include “unnamed persons who claim to be eligible but who have been determined by the State to be ineligible for services” (filing 86 at 3). This is inaccurate, as the class includes only persons who are eligible for services. The proposed class was defined as
all present and future individuals with developmental disabilities in Nebraska who are eligible for Medical Assistance Home and Community-Based Services but either are not receiving funding for such services, or are not receiving sufficient funding for such services to reasonably achieve the purpose of the service, assure the class member’s health and safety, or ensure progress toward independence, interdependence, productivity and community integration.
(Filing 58 ¶ 1 (emphasis added).) However, I agree with Judge Piester that the proposed class is not capable of a concise and exact definition. Since persons who are receiving funding that is “insufficient” to “reasonably achieve the purpose of the service”, “assure the class member’s health and safety”, or “ensure progress toward independence, interdependence, productivity and community integration” are class members, the court would have to determine whether the partial funding had any of the proscribed effects. In addition, the court would have to determine whether the reason class members are not receiving services is lack of funding rather than some other cause (such as lack of need or community manpower). This would be a factspecific inquiry unique to each plaintiff and would require substantial court intervention. (The need for this fact-specific inquiry also indicates that the commonality required by Fed. R. Civ. P. 23(a)(2) is absent.)
Plaintiffs assert that since their motion for class certification was made at an early stage, and since only injunctive and declaratory relief is sought, the class definition can be somewhat imprecise and can be “tailor[ed]” as the case proceeds. (Filing 97 at 16.) I reject this assertion. The proposed class definition is not merely
-2-

Case: 4:03-cv-03189-RGK-DLP Document #: 106 Date Filed: 09/08/05 Page 3 of 3

imprecise, but incapable of precise definition without extensive individualized factual inquiry by the court. The imprecision in the class definition is based in the lack of commonality of claims. I agree with Judge Piester’s conclusion regarding commonality, namely that

[t]he named plaintiffs essentially share one legal grievance: they claim they have been denied legally mandated services because the State either denies or improperly administers these services due to lack of funding. . . .
A generalized claim for injunctive and declaratory relief to remedy alleged systematic failures in a state’s delivery of legallymandated services does not present a sufficient ‘common question of law or fact’ for the purposes of Rule 23(a)(2).
(Filing 86 at 12 (citing J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999).)

IT IS ORDERED:

1. The Magistrate Judge's Report and Recommendation (filing 86) is adopted;

2. Plaintiffs’ objection to the Magistrate Judge's Report and Recommendation (filing 96) is denied; and

3. Plaintiffs’ motion for class certification and appointment of class counsel (filing 58) is denied.

September 8, 2005.

BY THE COURT:
s/Richard G. Kopf United States District Judge
-3-

 
 Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 1 of 26
CLOSED, NEBRASKA−DEFENDANT, NEBRASKADOCKET, PROTECTIVEORDER, TRIAL−LINCOLN
U.S. District Court District of Nebraska (4 Lincoln) CIVIL DOCKET FOR CASE #: 4:03−cv−03189−RGK−DLP

M. et al v. Nebraska Department of Health and Human Services Finance and Support et al Assigned to: Judge Richard G. Kopf Referred to: Magistrate Judge David L. Piester Case in other court: USCA 8th Circuit, 08−02586 Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 05/20/2003 Date Terminated: 04/28/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Bill M. by and through his father and natural guardian, William M., and on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler KINSEY, ROWE LAW FIRM Firm Name Updated 1/9/2006 P.O. Box 85778 Lincoln, NE 68501−5778 (402) 438−1313 Fax: (402) 438−1654 Email: bkistler@krbklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason MASON LAW FIRM − OMAHA 1505 South 108th Street Omaha, NE 68144 (402) 397−1050 Fax: (402) 397−0517 Email: Bmasonlaw@cox.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe KINSEY, ROWE LAW FIRM Firm Name Updated 1/9/2006 P.O. Box 85778 Lincoln, NE 68501−5778 (402) 438−1313 Fax: (402) 438−1654 Email: drowe@krbklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair NEBRASKA ADVOCACY SERVICES 134 South 13th Street Suite 600 Lincoln, NE 68508 (402) 474−3183 Fax: (402) 474−3274 Email: dianne@nas−pa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James NEBRASKA ADVOCACY SERVICES 134 South 13th Street Suite 600 Lincoln, NE 68508 (402) 474−3183

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 2 of 26

Fax: (402) 474−3274 Email: shirley@nas−pa.org TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
John Doe by and through his mother and natural guardian, Jane Doe, and on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Heather V. by and through her mother and guardian, Marcia V., and on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Jane S. on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 3 of 26

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Kevin V. by and through his mother and legal guardian, Kathy V., and on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Jennifer T. by and through her parents and legal guardians, Sharon and Greg T., and on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 4 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
William M. on behalf of his son, Bill M.

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Jane Doe on behalf of her son, John Doe

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Marcia V. on behalf of her daughter, Heather V.

represented by Bradford E. Kistler (See above for address)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 5 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Patricia S. on behalf of her daughter, Jane S. TERMINATED: 06/20/2006

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Kathy V. on behalf of her son, Kevin V.

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 6 of 26

Plaintiff Sharon T. on behalf of her daughter, Jennifer T.
Plaintiff Greg T. on behalf of his daughter, Jennifer T.

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY
represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY
represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 7 of 26

Plaintiff
Leslie H. on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Catherine M. on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Stephanie B. on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 8 of 26

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Conrad J. by and through his legal guardian, C.W.J., and on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Christopher H. by and through his legal guardian, Sue H., on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 9 of 26

TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Michael R. by and through his legal guardian Susan R. on behalf of themselves and all other persons similarly situated

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
C.W.J. on behalf of Conrad J.

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Sue H. on behalf of Christopher H.

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 10 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

Plaintiff
Susan R. on behalf of Michael R.

represented by Bradford E. Kistler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce G. Mason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David W. Rowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dianne D. DeLair (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shirley A. Mora James (See above for address) TERMINATED: 07/02/2009 LEAD ATTORNEY

V.
Defendant
Nebraska Department of Health and Human Services Finance and Support

represented by Douglas D Dexter ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−3833 Fax: (402) 471−4725 Email: doug.dexter@ago.ne.gov TERMINATED: 06/26/2006 LEAD ATTORNEY
Michael J. Rumbaugh ATTORNEY GENERAL'S OFFICE − NEBRASKA 1221 N Street

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 11 of 26

Suite 500 Lincoln, NE 68508 (402) 471−2989 Fax: (402) 471−4725 Email: mike.rumbaugh@nebraska.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Nebraska Department of Health &Human Services

represented by Douglas D Dexter (See above for address) TERMINATED: 06/26/2006 LEAD ATTORNEY

Michael J. Rumbaugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Stephen B. Curtiss in his official capacity as the Director of Nebraska Department of Health &Human Services Finance and Support TERMINATED: 06/20/2006

represented by Douglas D Dexter (See above for address) TERMINATED: 06/26/2006 LEAD ATTORNEY
Michael J. Rumbaugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ron Ross in his official capacity as the Director of Nebraska Department of Health &Human Services TERMINATED: 06/20/2006

represented by Douglas D Dexter (See above for address) TERMINATED: 06/26/2006 LEAD ATTORNEY
Michael J. Rumbaugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard Nelson in his official capacity as the Director of Nebraska Department of Health &Human Services Finance and Support

represented by Douglas D Dexter (See above for address) TERMINATED: 06/26/2006 LEAD ATTORNEY

Michael J. Rumbaugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Nancy Montanez in her official capacity as the Director of Nebraska Department of Health &Human Services

represented by Douglas D Dexter (See above for address) TERMINATED: 06/26/2006 LEAD ATTORNEY

Michael J. Rumbaugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 12 of 26

Date Filed 05/20/2003
05/20/2003 05/27/2003 05/27/2003 05/27/2003
05/30/2003 06/06/2003 06/06/2003
06/09/2003 06/11/2003 06/11/2003 06/11/2003 06/19/2003 06/23/2003 07/09/2003

# Docket Text
1 COMPLAINT filed by Attorneys Dianne D. DeLair Canto, Bradford E. Kistler, Bruce G. Mason, Shirley A. Mora James and David W. Rowe on behalf of John Doe, Bill M., Jane S., Jennifer T., Heather V. and Kevin V. against Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support and Ron Ross. No Summons issued, with receipt number 404609, in the amount of $150. (Attachments: # 1 E−mail to Clerk)(JAR, ) (Entered: 05/20/2003)
2 CIVIL COVER SHEET (JAR, ) (Entered: 05/20/2003)
3 SUMMONS (Never actually issued) Returned Unexecuted upon defendant Ron Ross on 5/21/2003. (JAR) Modified on 5/30/2003 per JLS to reflect that summons was unexecuted. (RDB) (Entered: 05/28/2003)
4 SUMMONS (Never actually issued) Returned Unexecuted upon defendant Stephen B. Curtiss on 5/21/2003. (JAR) Modified on 5/30/2003 per JLS to reflect that summons was unexecuted. (RDB) (Entered: 05/28/2003)
5 SUMMONS (Never actually issued) Returned Unexecuted upon defendant Nebraska Department of Health &Human Services on 5/21/2003; Nebraska Department of Health and Human Services Finance and Support on 5/21/2003. Jon Bruning served. (JAR) Modified on 5/30/2003 per JLS to reflect that summons was unexecuted. (RDB) (Entered: 05/28/2003)
6 Summonses Issued (COPY) as to defendant Stephen B. Curtiss; defendant Ron Ross; and Jon Bruning, Nebraska Attorney General. (RDB) (Entered: 05/30/2003)
7 MOTION for Extension of Time to File Answer by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 06/06/2003)
8 ORDER granting Defendants' Motion for Extension of Time to Answer 7 . Answer Deadline set for 07/09/2003, as to Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health and Human Services, Stephen B. Curtiss, and Ron Ross. Signed by Deputy Clerk on 06/06/2003. (RDB) (Entered: 06/06/2003)
9 SCHEDULING PACKET Rule 26 Meeting Report Deadline set signed by Magistrate Judge David L. Piester on 6/9/2003. (CCB, ) (Entered: 06/09/2003)
10 SUMMONS Returned Executed upon Defendant Ron Ross on 06/02/2003. (RDB) (Entered: 06/12/2003)
11 SUMMONS Returned Executed upon Defendant Stephen B. Curtiss on 06/02/2003. (RDB) (Entered: 06/12/2003)
12 SUMMONS Returned Executed upon Attorney General Jon Bruning on 06/02/2003, regarding Defendant Nebraska Department of Health &Human Services and Nebraska Department of Health and Human Services Finance and Support. (RDB) (Entered: 06/12/2003)
13 JOINT MOTION AND STIPULATION for Extension of Time regarding Rule 26 Report Deadline, filed by Attorney Shirley A. Mora James and Attorney David W. Rowe on behalf of the Plaintiffs, and by Attorney Douglas D. Dexter on behalf of the Defendants. (RDB) (Entered: 06/20/2003)
14 ORDER that the parties' Joint Motion for an Extension of Time 13 is hereby granted in part. The parties' Rule 26 report shall be due 30 days after defendants file an Answer or September 8, 2003, whichever FIRST occurs. Signed by Magistrate Judge David L. Piester on 06/23/2003. (RDB) (Entered: 06/23/2003)
15 MOTION for Extension of Time to File Answer by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 13 of 26

07/14/2003 07/18/2003
07/18/2003
08/07/2003 08/19/2003 08/19/2003 08/20/2003 08/28/2003 08/29/2003
09/02/2003
09/03/2003 09/08/2003 09/08/2003 09/08/2003 10/17/2003
10/17/2003

Support, Ron Ross (Dexter, Douglas) (Entered: 07/09/2003)
16 ORDER granting 15 Motion for Extension of Time to Answer. Answer Deadline set for 7/18/2003, as to all Defendants. Signed by Magistrate Judge David L. Piester on 7/14/2003. (JAR, ) (Entered: 07/14/2003)
17 MOTION to Dismiss by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 07/18/2003)
18 BRIEF In Support of Motion to Dismiss 17 by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 07/18/2003)
19 REPLY BRIEF In Opposition to Motion to Dismiss 17 by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/07/2003)
20 Unopposed MOTION to Amend Complaint by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/19/2003)
21 BRIEF In Support Motion to Amend 20 Plaintiffs' Complaint by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/19/2003)
22 ORDER granting 20 Plaintiffs' Motion to Amend Complaint. Amended Complaint due by 9/1/2003. Signed by Magistrate Judge David L. Piester on 8/20/2003. (GJG, ) (Entered: 08/20/2003)
23 AMENDED COMPLAINT against Defendant all defendants, by Attorney Shirley A. Mora James on behalf of Bill M. (Mora James, Shirley) (Entered: 08/28/2003)
24 MOTION for Extension of Time to File Answer by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 08/29/2003)
25 ORDER granting 24 Motion for Extension of Time to Answer. Answer Deadline set for 10/17/2003, as to Defendant State of Nebraska Department of Health and Human Services. Signed by Magistrate Judge David L. Piester on 9/2/2003. (GJG, ) (Entered: 09/02/2003)
26 ORDER NUNC PRO TUNC − regarding Defendant's Motion for Enlargment of Time 24 is granted as to ALL Defendants. Signed by Magistrate Judge David L. Piester on 9/3/2003. (GJG, ) (Entered: 09/03/2003)
27 Joint MOTION to Extend Time for Fed. R. Civ. P. 26 Report of Parties by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 09/08/2003)
28 ORDER granting 27 Joint Motion to Extend time to file their Rule 26 Report. The parties have until November 16, 2003. Signed by Magistrate Judge David L. Piester on 9/8/2003. (GJG, ) (Entered: 09/09/2003)
29 MOTION AND ORDER FOR PROTECTIVE ORDER. Signed by Magistrate Judge David L. Piester on 9/8/2003. (GJG, ) (Entered: 09/09/2003)
30 MOTION to Dismiss Amended Complaint by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 10/17/2003)
31 BRIEF In Support of Motion to Dismiss, 30 Amended Complaint by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 10/17/2003)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 14 of 26

10/20/2003 10/27/2003 11/10/2003 11/10/2003 11/10/2003 11/17/2003
11/17/2003 11/18/2003
11/24/2003
12/04/2003 12/05/2003 12/15/2003 12/30/2003 01/26/2004 02/12/2004

32 MEMORANDUM AND ORDER−denied as moot 17 Motion to Dismiss. Plaintiffs shall file their brief, if any, opposing the motion to dismiss the amended complaint 30 no later than November 10, 2003. Signed by Judge Richard G. Kopf on 10/20/2003. (GJG, ) (Entered: 10/20/2003)
33 Mail Returned as Undeliverable addressed to Dianne D. DeLair Canto regarding Order on Motion to Dismiss 32 . Mail resent to Dianne D. DeLair Canto, Nebraska Advocacy Services, 134 South 13th Street, Suite 600, Lincoln, Nebraska 68508. (GJG, ) (Entered: 10/27/2003)
34 REPLY BRIEF In Opposition to Defendants' Motion to Dismiss by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 11/10/2003)
35 REPLY BRIEF In Opposition to Defendants' Motion to Dismiss by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 11/10/2003)
36 REPLY BRIEF In Opposition to Defendants' Motion to Dismiss by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 11/10/2003)
37 MOTION to File Reply Brief in Support of Motion to Dismiss Amended Complaint by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 11/17/2003)
38 REPORT of Rule 26(f) Planning Meeting by Attorney David W. Rowe on behalf of Plaintiff Bill M. (Rowe, David) (Entered: 11/17/2003)
39 MEMORANDUM AND ORDER granting 37 Motion to submit reply brief. Defendants are granted leave to submit a reply brief on or before 12/01/03. Defendant's 30 Motion to Dismiss the amended complaint shall be ripe for decision on 12/02/03. Signed by Judge Richard G. Kopf on 11/18/2003. (CS, ) (Entered: 11/18/2003)
40 BRIEF In Support of Motion to Dismiss, 30 Amended Complaint by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 11/24/2003)
41 ORDER A Rule 26 Planning Conference set for 12/12/2003 10:30 AM before Magistrate Judge David L. Piester. Signed by Magistrate Judge David L. Piester on 12/4/2003. (GJG, ) (Entered: 12/04/2003)
42 Certificate of Service−Plaintiff's Rule 26(a)(1) Initial Disclosures by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 12/05/2003)
43 MEMORANDUM AND ORDER regarding Report of Rule 26(f) Planning Meeting 38 filed by Bill M. Planning Conference set for 8/10/2004 09:00 AM before Magistrate Judge David L. Piester. Signed by Magistrate Judge David L. Piester on 12/15/2003. (GJG, ) (Entered: 12/15/2003)
44 Certificate of Service by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 12/30/2003)
45 Certificate of Service by Attorney Douglas D. Dexter on behalf of Defendants Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 01/26/2004)
46 NOTICE to Take Deposition of Records by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 02/12/2004)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 15 of 26

02/17/2004 02/24/2004 02/26/2004 02/27/2004 03/04/2004 03/04/2004 03/12/2004 03/31/2004 04/29/2004
05/03/2004
05/05/2004 07/01/2004 07/01/2004 07/19/2004
07/21/2004 07/30/2004

47 RETURN of service of Subpoena on 2/13/2004 upon Doug Dexter of the Attorney General's Officeby Attorney Shirley A. Mora James (GJG, ) (Entered: 02/17/2004)
48 NOTICE to Take Deposition of Ron Ross by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 02/24/2004)
49 Certificate of Service of Notice to Take Deposition of Roger Stortenbecker by Attorney David W. Rowe on behalf of Plaintiff Bill M. (Rowe, David) (Entered: 02/26/2004)
50 NOTICE to Take Deposition of Carla Sorensen and inspection of documents by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 02/27/2004)
51 Certificate of Service by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 03/04/2004)
52 Certificate of Service of Amended Notice to Take Deposition Duces Tecum of Roger Stortenbecker by Attorney David W. Rowe on behalf of Plaintiff Bill M. (Rowe, David) (Entered: 03/04/2004)
53 RETURN of service of Subpoena on 3/8/2004 upon Roger Stortenbecker, Developmental Services of NE, Inc.,by Attorney David W. Rowe (GJG, ) (Entered: 03/15/2004)
54 RETURN of service of Subpoena on 3/8/2004 upon Roger Stortenbeckerby Attorney David W. Rowe (GJG, ) (Entered: 03/31/2004)
55 MOTION to Continue Progression Order Deadlines by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Attachments: # 1 # 2 # 3)(Dexter, Douglas) (Entered: 04/29/2004)
56 ORDER granting 55 Motion to Continue. This case is stayed in all respects for a period of sixty days from this date. All deadlines, dates for disclosures, all discovery, conferences and the like are continued for sixty days from their original date. The planning conference with counsel is continued to October 4, 2004 at 10:00 a.m. in the chambers of the undersigned. In the event that counsel agree to re−activate this case prior to the expiration of the sixty days, they may jointly so inform the office of the undersigned of that agreement and request a conference with the court for the purpose of considering matters of progression. Signed by Magistrate Judge David L. Piester on 5/3/2004. (GJG, ) (Entered: 05/03/2004)
57 CERTIFICATE of Court Reporter regarding: Deposition of Roger Stortenbecker of April 13, 2004 (BMH) (Entered: 05/05/2004)
58 MOTION to Certify Class by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 07/01/2004)
59 BRIEF In Support of Motion to Certify Class by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 07/01/2004)
61 MOTION Enlargement of Time to Respond to Motion for Certification of Class regarding MOTION to Certify Class 58 by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Attachments: # 1 Affidavit)(Dexter, Douglas) (Entered: 07/19/2004)
62 MEMORANDUM AND ORDER granting 61 Motion for additional time to respond to the motion for class certification, The deadline for Defendants to respond to the motion for class certification is extended to July 30, 2004. Signed by Judge Richard G. Kopf on 7/21/2004. (GJG, ) (Entered: 07/21/2004)
63 MOTION for Enlargement of Time by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 07/30/2004)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 16 of 26

07/30/2004
08/02/2004 08/06/2004 08/06/2004 08/09/2004 08/16/2004 08/17/2004 08/27/2004 09/07/2004
09/07/2004 09/07/2004 09/13/2004 09/17/2004 09/28/2004

64 MOTION for Enlargement of Time (supersedes Document 63) by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 07/30/2004)
65 BRIEF In Opposition to Certification of Class by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 08/02/2004)
66 MEMORANDUM AND ORDER denying 30 Motion to Dismiss Signed by Judge Richard G. Kopf on 8/6/2004. (GJG, ) (Entered: 08/06/2004)
67 Unopposed MOTION to Extend time to file reply brief by Attorney Dianne D. DeLair on behalf of Plaintiff Bill M. (Attachments: # 1)(DeLair, Dianne) (Entered: 08/06/2004)
68 ORDER granting 67 Motion to Extend time to file reply brief to MOTION to Certify Class 58 . Signed by Magistrate Judge David L. Piester on 8/9/2004. (GJG, ) (Entered: 08/09/2004)
69 Unopposed MOTION to Extend time to file reply brief by Attorney Dianne D. DeLair on behalf of Plaintiff Bill M. (Attachments: # 1)(DeLair, Dianne) (Entered: 08/16/2004)
70 ORDER granting 69 Motion to Extend time to file reply brief. Plaintiff is granted until 8/27/2004 to file reply. Signed by Magistrate Judge David L. Piester on 8/17/2004. (JAR) (Entered: 08/17/2004)
71 REPLY BRIEF In support of Class Certification by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/27/2004)
72 NOTICE OF APPEAL (INTERLOCUTORY) by Attorney Douglas D. Dexter, Stephen B. Curtiss on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross, Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross. by Attorney Douglas D. Dexter, Stephen B. Curtiss on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross, Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) Modified on 9/8/2004 to add the word "interlocutory" (GJG, ). (Entered: 09/07/2004)
73 REQUEST FOR TRANSCRIPT by Attorney Douglas D. Dexter on behalf of Defendants Stephen B. Curtiss, Nebraska Department of Health &Human Services, Nebraska Department of Health and Human Services Finance and Support, Ron Ross (Dexter, Douglas) (Entered: 09/07/2004)
APPEAL fee paid with receipt number 406099 in the amount of $ 255 regarding Notice of Appeal to USCA, 72 . THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (GJG, ) (Entered: 09/08/2004)
74 2 CERTIFIED COPIES of Notice of Appeal, 72 , Memorandum and Order 66 , Request for Transcript 73 and certified Docket Sheet to Clerk, USCA − 8th Circuit. (GJG, ) (Entered: 09/13/2004)
75 SCHEDULING LETTER (e−mail) from USCA − 8th Circuit as to Notice of Appeal to USCA 72 ; Appellate Docket Number: 04−3263. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 09/17/2004)
76 MEMORANDUM AND ORDER−The planning conference that was set for October 4, 2004 iscancelled. Within ten days of any ruling by the Eighth Circuit on defendants' interlocutory appeal, plaintiffs' counsel shall advise the undersigned regarding the need for and any rescheduling of the planning conference. Signed by

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 17 of 26

10/12/2004 10/14/2004 05/27/2005
05/31/2005
06/02/2005 06/06/2005 06/09/2005
06/16/2005 06/16/2005 06/20/2005
06/22/2005 06/28/2005

Magistrate Judge David L. Piester on 9/28/2004. (GJG, ) (Entered: 09/28/2004)
77 Joint MOTION to Seal Filing #60 [Index of Evidence] by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 10/12/2004)
78 ORDER granting 77 . The joint motion of the parties to seal is granted andFiling #60 shall be shall be sealed. Signed by Magistrate Judge David L. Piester on 10/14/2004. (GJG, ) (Entered: 10/14/2004)
79 E−mail COPY of Opinion of USCA − 8th Circuit(04−3263) regarding Notice of Interlocutory Appeal to USCA, 72 . The denial of Nebraska's motion to dismiss based on sovereign immunity with respect to Plaintiffs' Title II claim is reversed, and the case is remanded to the district court with direction to dismiss the Title II claim against Nebraska. (Attachments: # 1 Letter by Clerk)(JAR) (Entered: 05/27/2005)
80 MAIL COPY of Opinion of USCA − 8th Circuit(04−3263) regarding Notice of Interlocutory Appeal to USCA, 72 . The denial of Nebraska's motion to dismiss based on sovereign immunity with respect to Plaintiffs' Title II claim is reversed, and the case is remanded to the district court with direction to dismiss the Title II claim against Nebraska. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 05/31/2005)
81 Letter by Clerk regarding Opinion (Copy) of USCA, 80 . On May 27, 2005, the opinion of this court was filed. Our cover letter indicated the petition for rehearing was due within 14 days. The due date is in error and the parties will have 45 days from the date of the opinion to file a petition for rehearing, up to and including, July 11, 2005. (GJG, ) (Entered: 06/02/2005)
82 Mail copy of Letter by Clerk regarding Opinion (Copy) of USCA, 80 . On May 27, 2005, the opinion of this court was filed. Our cover letter indicated the petition for rehearing was due within 14 days. The due date is in error and the parties will have 45 days from the date of the opinion to file a petition for rehearing, up to and including, July 11, 2005. (JAR) (Entered: 06/06/2005)
83 ORDER−Upon the representations of counsel IT IS ORDERED: A planning conference will be held November 2, 2005 at 9:00 a.m. in the chambers of the undersigned, Room 566 Federal Building, 100 Centennial Mall North, Lincoln, Nebraska. Planning Conference set for 11/2/2005 09:00 AM before Magistrate Judge David L. Piester. Signed by Magistrate Judge David L. Piester on 6/9/2005. (GJG, ) (Entered: 06/09/2005)
84 ANSWER to Complaint by Attorney Douglas D. Dexter on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross(Dexter, Douglas) (Entered: 06/16/2005)
85 Certificate of Service by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M.(Mora James, Shirley) (Entered: 06/16/2005)
86 REPORT AND RECOMMENDATION regarding the MOTION to Certify Class 58 . IT THEREFORE HEREBY IS RECOMMENDED to the Honorable Richard G. Kopf, United States District Judge, pursuant to 28 U.S.C. sec. 636(b) that the plaintiffs' motion to certify a class, filing 58 be denied in all respects. The parties are notified that a failure to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court's adoption of the recommendation. Signed by Magistrate Judge David L. Piester on 6/20/2005. (GJG, ) (Entered: 06/20/2005)
87 NOTICE to Take Deposition of Nancy Montanez by Attorney Dianne D. DeLair on behalf of Plaintiff Bill M. (DeLair, Dianne) (Entered: 06/22/2005)
88 Unopposed MOTION to Extend Time to Object to Magistrate's Report and Recommendation by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M.(Mora James, Shirley) (Entered: 06/28/2005)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 18 of 26

07/01/2005 07/20/2005 07/22/2005
07/22/2005 08/01/2005 08/01/2005 08/01/2005 08/04/2005 08/04/2005 08/09/2005
08/12/2005
08/18/2005
08/22/2005
08/25/2005
08/29/2005 08/29/2005

89 ORDER granting 88 Motion to Extend. Plaintiffs shall have until August 4, 2005 to object to the report and recommendation regarding class certification filing 86 . Signed by Judge Richard G. Kopf on 7/1/2005. (GJG, ) (Entered: 07/01/2005)
90 Letter from Clerk, USCA 8th Circuit(04−3263) to Attorney Douglas D. Dexter regarding filing of petitions. (JAR) (Entered: 07/20/2005)
91 NOTICE of Appearance by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross (Rumbaugh, Michael) (Entered: 07/22/2005)
92 Letter by USCA Clerk (04−3263) requesting counsel to respond to the petitions by 08/01/2005 regarding Interlocutory Notice of Appeal to USCA 72 (CS, ) (Entered: 07/22/2005)
93 NOTICE to Take Deposition of Nancy Montanez by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/01/2005)
94 NOTICE to Take Deposition of Chris Peterson by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/01/2005)
95 NOTICE to Take Deposition of Dick Nelson by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/01/2005)
96 OBJECTION to Report and Recommendation,, 86 by Attorney David W. Rowe on behalf of Plaintiff Bill M.(Rowe, David) (Entered: 08/04/2005)
97 BRIEF In Support of Plaintiff's Statement of Objection to Magistrate Judge's Recommendation to Deny Class Certification by Attorney David W. Rowe on behalf of Plaintiff Bill M.(Rowe, David) (Entered: 08/04/2005)
98 NOTICE of Service by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross (Rumbaugh, Michael) (Entered: 08/09/2005)
99 BRIEF In Opposition to Objection to Report and Recommendation 96 by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross(Rumbaugh, Michael) (Entered: 08/12/2005)
100 E−mail COPY of Order from USCA − 8th Circuit(04−3263): The petitions for rehearing en banc are denied. The petitions for rehearing by the panel are also denied. Judge Murphy, Judge Bye and Judge Melloy would grant the petitionsfor rehearing en banc. (Attachments: # 1 Letter by Clerk)(JAR) (Entered: 08/18/2005)
101 COPY of Order from USCA − 8th Circuit (via U.S. Mail) that the petitions for rehearing en banc are denied; the petitions for rehearing by the panel are also denied; Judge Murphy, Judge Bye and Judge Melloy would grant the petitions for rehearing en banc. (Attachment # 1 Letter by Clerk, USCA)(BMH) (Entered: 08/22/2005)
102 Letter (e−mail) by Clerk USCA 8th−Circuit regarding Notice of Appeal to USCA, 72 . The mandate of this Court is being sent to the clerk of the district court, together with a receipt. The clerk of the district court is requested to sign, date, and return the receipt to this office. Any district court records in this court's possession will be returned shortly (GJG, ) (Entered: 08/25/2005)
103 CERTIFIED copy of Opinion of USCA − 8th Circuit (04−3263) regarding Notice of Appeal to USCA 72 . (GJG, ) (Entered: 08/29/2005)
104 JUDGMENT from USCA − 8th Circuit (04−3293 reversing the decision of the District Court regarding Interlocutory Notice of Appeal to USCA 72 . The cause is remanded to the district court for proceedings consistent with the opinion 103 of this court. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 08/29/2005)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 19 of 26

09/02/2005
09/08/2005 09/22/2005 10/14/2005
10/27/2005
10/28/2005 12/23/2005
12/23/2005 01/03/2006 01/23/2006 01/31/2006 02/01/2006

105 MEMORANDUM AND ORDER regarding: Opinion (Certified Copy) of USCA, 8th Circuit 103 . For the reasons stated by the Court of Appeals, 408 F.3d at 1098−1100, I will dismiss the first claim for relief of the Amended Complaint (filing 23 ), which asserts a violation of Title II of the ADA. IT IS ORDERED that the first claim for relief of the Amended Complaint (filing 23 ), which asserts a violation of Title II of the ADA, is dismissed with prejudice. Signed by Judge Richard G. Kopf on 9/2/2005. (JAR) (Entered: 09/02/2005)
106 MEMORANDUM AND ORDER − The Magistrate Judge's Report and Recommendation 86 is adopted. Plaintiffs' objection to the Magistrate Judge's Report and Recommendation 96 is denied. Plaintiffs' motion for class certification and appointment of class counsel 58 is denied. Signed by Judge Richard G. Kopf on 9/8/2005. (GJG, ) (Entered: 09/08/2005)
107 NOTICE of Serving Defendants' Supplemental Responses by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross (Rumbaugh, Michael) (Entered: 09/22/2005)
108 ORDER SETTING INITIAL PROGRESSION OF A CIVIL CASE − Although a progression order was previously entered in this case, the deadlines set forth in that order were stayed pending the August 29, 2005 ruling of the United States Court of Appealsfor the Eighth Circuit on the defendants' interlocutory appeal. A new progression order must now be entered. Rule 26 Meeting Report Deadline set for 10/27/2005. Signed by Magistrate Judge David L. Piester on 10/14/2005. (JAR) (Entered: 10/14/2005)
109 ORDER granting Joint Oral Motion. The parties' joint oral motion for a continuance is granted. The parties are given until December 23, 2005 to either advise the court that this case is settled or file a Rule 26(f) Report of Parties Planning Conference in accordance with my October 14, 2005 order, filing 108 . Signed by Magistrate Judge David L. Piester on 10/27/2005. (JAR) (Entered: 10/27/2005)
110 ORDER granting Oral Motion. The preliminary planning conference that was set forNovember 2, 2005 is cancelled. Signed by Magistrate Judge David L. Piester on 10/28/2005. (GJG, ) (Entered: 10/28/2005)
111 Joint MOTION to Continue by Attorney Michael J. Rumbaugh on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, Greg T., Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross(Rumbaugh, Michael) (Entered: 12/23/2005)
112 ORDER − The parties' joint motion for continuance, filing 111 is granted and the Rule 26 report deadline is extended to January 23, 2006. No further extensions of time will be granted. Signed by Magistrate Judge David L. Piester on 12/23/2005. (GJG, ) (Entered: 12/23/2005)
113 LETTER (COPY) from USCA − 8th Circuit that petition for writ of certiorari has been filed − U.S. Supreme Court Number: 05−777. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 01/03/2006)
114 REPORT of Rule 26(f) Planning Meeting by Attorney David W. Rowe on behalf of Plaintiff Bill M.(Rowe, David) (Entered: 01/23/2006)
115 AMENDED ORDER SETTING SCHEDULE FOR INITIAL PROGRESSION OF A CIVIL CASE − Telephone Planning Conference set for 5/15/2006 at 09:00 AM before Magistrate Judge David L. Piester. Signed by Magistrate Judge David L. Piester on 1/31/2006. (GJG, ) (Entered: 02/01/2006)
116 ORDER regarding Order Setting Schedule for Initial Progression of a Civil Case 115 . Paragraph 6 of the amended initial progression order is amended as follows: 6. Adding Parties; Amending Pleadings. Any motion to amend pleadings and/or add parties shall be filed not later than April 23, 2006. Signed by Magistrate Judge David L. Piester on 2/1/2006. (GJG, ) (Entered: 02/01/2006)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 20 of 26

04/24/2006 04/24/2006 04/24/2006 05/04/2006 05/12/2006 05/25/2006 05/30/2006 06/02/2006 06/14/2006 06/16/2006 06/22/2006 06/26/2006
06/30/2006

117 MOTION for Leave to amend complaint by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M.(Mora James, Shirley) (Entered: 04/24/2006)
118 BRIEF In Support of Plaintiffs' Motion for Leave to Amend Complaint by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M.(Mora James, Shirley) (Entered: 04/24/2006)
119 AMENDED COMPLAINT (Proposed)(linked to filing #117) against Defendant all defendants, by Attorney David W. Rowe on behalf of Bill M.(Rowe, David) (Entered: 04/24/2006)
120 LETTER (COPY) from USCA − 8th Circuit(04−3263) that petition for writ of certiorari has been GRANTED − U.S. Supreme Court Number: 05−777. The judgment is vacated and the case is remanded to the U.S. Court of Appeals for further consideration. (Attachments: # 1 Letter from Clerk, USCA 8th Circuit)(JAR) (Entered: 05/04/2006)
121 ORDER− The telephone planning conference that was set for May 15, 2006, is continued until further order pending the decision from the Court of Appeals. Signed by Magistrate Judge David L. Piester on 5/12/2006. (GJG, ) (Entered: 05/12/2006)
122 COPY (e−mail) of Order from USCA − 8th Circuit (04−3263). In consideration of the United States Supreme Court's judgment dated April 17, 2006, the mandate in this matter is hereby recalled and the case is reopened. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 05/25/2006)
123 COPY (mail) of Order from USCA − 8th Circuit (04−3263). In consideration of the United States Supreme Court's judgment dated April 17, 2006, the mandate in this matter is hereby recalled and the case is reopened. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 05/31/2006)
124 RESPONSE regarding MOTION for Leave to amend complaint 117 and Add Parties by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross(Rumbaugh, Michael) (Entered: 06/02/2006)
125 ORDER − Motion for Leave to Amend Complaint and Add Parties, filing 117 is granted. Plaintiff is given five days to file the amended complaint. Amended Complaint due by 6/21/2006. Signed by Magistrate Judge David L. Piester on 6/14/2006. (GJG, ) (Entered: 06/14/2006)
126 AMENDED COMPLAINT SECOND against Defendant all defendants, by Attorney Shirley A. Mora James on behalf of Bill M.(Mora James, Shirley) (Entered: 06/16/2006)
127 MOTION to Withdraw as Attorney by Attorney Douglas D Dexter on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross, Richard Nelson, Nancy Montanez(Dexter, Douglas) (Entered: 06/22/2006)
128 ORDER granting 127 Motion to Withdraw as Attorney. IT IS ORDERED: The "Withdrawal of Counsel" (interpreted by the court to be a motion to withdraw) filed by Douglas D. Dexter, counsel for the Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross, Richard Nelson, and NancyMontanez, filing 127 , is granted. Signed by Magistrate Judge David L. Piester on 6/26/2006. (JAR) (Entered: 06/26/2006)
129 MOTION for Extension of Time to File Answer by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross, Richard Nelson, Nancy Montanez(Rumbaugh, Michael) (Entered: 06/30/2006)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 21 of 26

07/03/2006 07/13/2006 07/17/2006 07/28/2006 07/31/2006
08/17/2006 01/11/2007
01/30/2007 02/23/2007 02/23/2007 02/23/2007

130 ORDER granting 129 Motion for Extension of Time to Answer. Nebraska Department of Health and Human Services Finance and Support answer due 8/4/2006; Nebraska Department of Health &Human Services answer due 8/4/2006; Richard Nelson answer due 8/4/2006; Nancy Montanez answer due 8/4/2006. Signed by Magistrate Judge David L. Piester on 7/3/2006. (JAE, ) (Entered: 07/03/2006)
131 COPY (e−mail) of Order from USCA − 8th Circuit (04−3263). The joint motion to voluntarily dismiss this appeal has been considered and is granted. The appeal is hereby dismissed with prejudice, with the parties bearing their own costs, in accordance with the agreement. The Court's mandate shall issue forthwith. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 07/13/2006)
132 MANDATE/JUDGMENT from USCA − 8th Circuit (04−3263) Notice of Appeal to USCA 72 . The joint motion to voluntarily dismiss this appeal has been considered and is granted. The appeal is hereby dismissed with prejudice, with the parties bearing their own costs, in accordance with the agreement. The Court's mandate shall issue forthwith. (Attachments: # 1 Transmittal Letter)(JAE, ) (Entered: 07/17/2006)
133 MOTION for Extension of Time to File Answer by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Stephen B. Curtiss, Ron Ross, Richard Nelson, Nancy Montanez (Attachments: # 1 Affidavit Affidavit of Counsel)(Rumbaugh, Michael) (Entered: 07/28/2006)
134 ORDER − Defendants' motion for time to plead, filing 133 , is granted and defendants are given to August 18, 2006 to answer or otherwise plead to the Second Amended Complaint. Nebraska Department of Health and Human Services Finance and Support answer due 8/18/2006; Nebraska Department of Health &Human Services answer due 8/18/2006; Richard Nelson answer due 8/18/2006; Nancy Montanez answer due 8/18/2006. Signed by Magistrate Judge David L. Piester on 7/31/2006. (GJG, ) (Entered: 08/01/2006)
135 Defendants' ANSWER to Amended Complaint Second by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez Amended Complaint 126 filed by Bill M., (Rumbaugh, Michael) (Entered: 08/17/2006)
136 ORDER − A conference with counsel shall be held, by telephone, at 11:00 a.m. on January 29, 2007 for the purpose of scheduling this matter to trial or other disposition, pursuant to Fed. R. Civ. P. 16. Plaintiffs' counsel shall place the call. Prior to the conference counsel shall confer with respect to discovery plans, motions, and the like, and shall be prepared to propose a progression schedule to the court, keeping in mind that the case is over three years old, and must be resolved promptly. Telephone Conference set for 1/29/2007 11:00 AM in by Telephone before Magistrate Judge David L. Piester.Ordered by Magistrate Judge David L. Piester. (GJG, ) (Entered: 01/11/2007)
137 ORDER SETTING SCHEDULE FOR PROGRESSION OF A CIVIL CASE − Pretrial Conference set for 12/19/2007 at 09:00 AM in Chambers before Magistrate Judge David L. Piester. Non−jury trial is set to commence, at the court's call, during the week of January 22, 2008 for nine trial days, in Lincoln, Nebraska, before the Honorable Richard G. Kopf, United States District Judge.Ordered by Magistrate Judge David L. Piester. (GJG, ) (Entered: 01/30/2007)
138 MOTION to Certify Class by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M.(Mora James, Shirley) (Entered: 02/23/2007)
139 BRIEF In Support of MOTION to Certify Class 138 by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M.(Mora James, Shirley) (Entered: 02/23/2007)
140 INDEX In Support of MOTION to Certify Class 138 by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Attachments: # 1 Exhibit 1 (Filing 126) Second Amended Complaint# 2 Exhibit 4 Affidavit of Bruce G. Mason# 3 Exhibit 6 Affidavit of David Rowe)(Mora James, Shirley) (Entered: 02/23/2007)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 22 of 26

03/14/2007
03/16/2007 04/16/2007
04/16/2007
04/17/2007
04/30/2007 05/02/2007 05/18/2007
05/18/2007 05/18/2007 05/23/2007 06/20/2007 06/22/2007

141 MOTION to Extend Time to Respond to Plaintiffs' MOTION to Certify Class 138 by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez. (Attachments: # 1 Affidavit Affidavit of Counsel)(Rumbaugh, Michael) (Entered: 03/14/2007)
142 ORDER − Defendants' motion for time, filing 141 , is granted and the deadline for responding to plaintiffs' motion to certify class is extended to April 16, 2007.Ordered by Magistrate Judge David L. Piester.(CS, ) (Entered: 03/16/2007)
143 BRIEF in Opposition to Motion for Class Certification and Appointment of Class Counsel by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Stephen B. Curtiss. (Attachments: # 1 Exhibit Evidence Index# 2 Exhibit Exhibit 1)(Rumbaugh, Michael) (Entered: 04/16/2007)
144 BRIEF In Opposition Amended Brief in Opposition to Motion for Class Certification and Appointment of Class Council by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez. (Attachments: # 1 Exhibit Evidence Index# 2 Exhibit Exhibit 1)(Rumbaugh, Michael) (Entered: 04/16/2007)
145 TEXT NOTICE OF FILING INDEX ATTACHED TO BRIEF regarding Brief, 144 , and Brief, 143 by Deputy Clerk. Indexes shall be electronically filed as a separate document using the index event. The index must identify the document to which it relates. This notice is for your information for future filings.(JAR) (Entered: 04/17/2007)
146 Unopposed MOTION to Extend Time by Attorney David W. Rowe on behalf of Plaintiff William M..(Rowe, David) (Entered: 04/30/2007)
147 ORDER granting 146 Motion to Extend deadline. Plaintiffs are given to May 18, 2007 to file their brief in response to defendants' amended brief in opposition to motion for class certification. Ordered by Magistrate Judge David L. Piester.(CAR, ) (Entered: 05/02/2007)
148 STRICKEN PER ORDER 149 BRIEF In Support of Motion for Class Certification and Appointment of Class Counsel by Attorney David W. Rowe on behalf of Plaintiff Bill M.. (Attachments: # 1 Plaintiffs' reply brief in support of motion for class certification and appointment of class counsel)(Rowe, David) Modified on 5/18/2007 to add stricken text (BMH). (Entered: 05/18/2007)
149 TEXT STRIKE ORDER ordered by Deputy Clerk that Pursuant to General Order Number 2006−01, the Brief 148 is stricken for the following reason(s): incorrect PDF (duplicate attachment). The party is directed to re−file the document. (BMH) (Entered: 05/18/2007)
150 REPLY BRIEF In Support of Motion for Class Certification and Appointment of Class Counsel by Attorney David W. Rowe on behalf of Plaintiff Bill M..(Rowe, David) (Entered: 05/18/2007)
151 NOTICE of Serving Expert Witness Disclosure by Attorney Michael J. Rumbaugh on behalf of Defendant Nebraska Department of Health and Human Services Finance and Support (Rumbaugh, Michael) (Entered: 05/23/2007)
152 NOTICE of Serving Expert Witness Disclosure by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 06/20/2007)
153 REPORT AND RECOMMENDATION − IT THEREFORE HEREBY IS RECOMMENDED to the Honorable Richard G. Kopf, United States District Judge, pursuant to 28 U.S.C. § 636(b) that the plaintiffs motion to certify a class, filing 138 , be denied. The parties are notified that a failure to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court's adoption of the recommendation. Ordered by Magistrate Judge David L. Piester. (CS, ) (Entered: 06/22/2007)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 23 of 26

07/17/2007 07/23/2007 08/01/2007 08/09/2007 08/09/2007 08/09/2007 08/16/2007 09/19/2007 09/19/2007 09/19/2007 10/18/2007 11/27/2007
02/01/2008
02/28/2008 02/28/2008 03/03/2008

154 ORDER adopting Magistrate Judge's Report and Recommendation 153 and denying Plaintiffs' motion for class certification and appointment of class counsel 138 . Ordered by Judge Richard G. Kopf.(KLL, ) (Entered: 07/17/2007)
155 Mail Returned as Undeliverable addressed to drowe@c13−ss−2−lb.cnet.com regarding Order on Motion to Certify Class, Order on Report and Recommendation 154 . E−mail address corrected and resent to drowe@krbklaw.com. (JAB) (Entered: 07/23/2007)
156 NOTICE of Service of Plaintiffs' Rule 26 Disclosure of Non−expert Witnesses by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/01/2007)
157 NOTICE to Take Deposition of Rene Ferdinand by Attorney David W. Rowe on behalf of Plaintiff Bill M. (Rowe, David) (Entered: 08/09/2007)
158 NOTICE to Take Deposition of Don Severance by Attorney David W. Rowe on behalf of Plaintiff Bill M. (Rowe, David) (Entered: 08/09/2007)
159 NOTICE to Take Deposition of Rene Ferdinand Amended Notice to Take Deposition by Attorney David W. Rowe on behalf of Plaintiff Bill M. (Rowe, David) (Entered: 08/09/2007)
160 NOTICE to Take Deposition of Willard Bouwens by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 08/16/2007)
161 NOTICE to Take Deposition of Mary Steiner by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 09/19/2007)
162 NOTICE to Take Deposition of Pam Hovis by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 09/19/2007)
163 NOTICE to Take Deposition of Willard Bouwens by Attorney Shirley A. Mora James on behalf of Plaintiff Bill M. (Mora James, Shirley) (Entered: 09/19/2007)
164 NOTICE of Serving Non−Expert Witness Disclosure by Attorney Michael J. Rumbaugh on behalf of Defendant Nebraska Department of Health and Human Services Finance and Support (Rumbaugh, Michael) (Entered: 10/18/2007)
165 AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF A CIVIL CASE − Pretrial Conference set for 2/7/2008 at 09:00 AM in Chambers before Magistrate Judge David L. Piester. Non−Jury Trial set to commence during the week of 3/10/2008 in Courtroom 1 (Lincoln) before Judge Richard G. Kopf for 9 days.Ordered by Magistrate Judge David L. Piester. (CS, ) (Entered: 11/27/2007)
166 SETTLEMENT ORDER. It is ordered that: (1) Within thirty (30) calendar days of the date of this order, the parties shall file a joint stipulation for dismissal (or other dispositive stipulation) with the clerk of the court (and provide a copy to the magistrate judge and to United States District Judge Richard G. Kopf, the trial judge to whom this case is assigned), together with submitting to the trial judge a draft order which will fully dispose of the case; (2) Absent compliance with this order, this case (including all counterclaims and the like) may be dismissed without further notice; (3) This case is removed from the court's March 10, 2008 trial docket upon representation by the parties that the case has settled.***Set Dismissal Papers Deadline: due by 3/3/2008. Termed 2/7/2008 Pretrial Trial Conference date and 3/10/2008 trial date. Ordered by Judge Richard G. Kopf. (KLL, ) (Entered: 02/01/2008)
167 Joint MOTION to Extend Time (for filing Settlement Agreement and other Dispositive Papers) by Attorney David W. Rowe on behalf of Plaintiff Bill M..(Rowe, David) (Entered: 02/28/2008)
168 INDEX in support of Joint MOTION to Extend Time (for filing Settlement Agreement and other Dispositive Papers) 167 by Attorney David W. Rowe on behalf of Plaintiff Bill M.. (Attachments: # 1 Affidavit of Counsel (Defendants'), # 2 Affidavit of Plaintiff's Counsel)(Rowe, David) (Entered: 02/28/2008)
169 ORDER granting 167 parties' joint motion to extend Time (for filing Settlement Agreement and other Dispositive Papers) 167 to 4/2/08. Ordered by Magistrate

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 24 of 26

03/04/2008 04/02/2008 04/09/2008 04/16/2008 04/16/2008 04/16/2008 04/17/2008 04/21/2008
04/24/2008

Judge David L. Piester. (CCB) (Entered: 03/03/2008)
170 MEMORANDUM AND ORDER regarding Order on Motion to Extend 169 . No further extensions will be granted, and in the event of noncompliance with the order in filing 166 , as amended by the order in filing 169 , this action may be dismissed without further notice. Ordered by Judge Richard G. Kopf. (Copy to Judge Piester)(JAB) (Entered: 03/04/2008)
171 Joint MOTION for Settlement Approval by Attorney Shirley A. Mora James on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Stephanie B., Michael R., Sue H., Susan R., William M., Jane Doe, Marcia V., Kathy V., Sharon T., John Doe, Greg T.. (Attachments: # 1 Exhibit Settlement Agreement)(Mora James, Shirley) (Entered: 04/02/2008)
172 MEMORANDUM AND ORDER regarding Joint MOTION for Settlement Approval 171 . IT IS ORDERED that: No later than the close of business on April 17, 2008, a lawyer for the plaintiffs shall file in the court file a response regarding the statements described herein. Failure to timely comply with this memorandum and order may result in the imposition of sanctions including, but not limited to, those detailed in Federal Rule of Civil Procedure 37(b)(2). Ordered by Judge Richard G. Kopf. (JAB) (Entered: 04/09/2008)
173 STRICKEN − RESPONSE of Plaintiffs to Memorandum and Order by Attorney David W. Rowe on behalf of Plaintiff Bill M..(Rowe, David) Modified on 4/17/2008 to add "stricken" text pursuant to Order 176 . (JAB) (Entered: 04/16/2008)
174 RESPONSE TO THE APRIL 9, 2008 MEMORANDUM AND ORDER by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez.(Rumbaugh, Michael) (Entered: 04/16/2008)
175 RESPONSE of Plaintiffs to Memorandum and Order by Attorney David W. Rowe on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Kathy V., Sharon T., John Doe, Greg T..(Rowe, David) (Entered: 04/16/2008)
176 TEXT STRIKE ORDER that Pursuant to General Order Number 2006−01, the Response 173 is stricken for the following reason(s): the document is a duplicate of document number 175 . Ordered by Deputy Clerk. (JAB) (Entered: 04/17/2008)
177 MEMORANDUM AND ORDER granting 171 Joint Motion for Settlement. The settlement agreement (attachment 1 to filing 171 ) is approved subject to the terms of the Courts earlier memorandum and order (filing 172 ). The plaintiffs shall file their joint motion to dismiss with prejudice within three working days. As soon as that motion is filed, the Court will enter a judgment pursuant to Federal Rule of Civil Procedure 54(b) dismissing the entirety of this case, except for the issue of attorney fees, with prejudice. At the request of the parties, the Court retains jurisdiction to rule on the anticipated motion of the plaintiffs for attorneys fees. Plaintiffs shall have 21 days from the entry of this order to file such a motion, supporting affidavits and supporting brief. The defendants shall have 21 days thereafter to respond. Plaintiffs shall have 7 days thereafter to file a reply. To the extent that the plaintiffs response (filing 175 ) contains any equivocation or request for additional relief, such equivocation is rejected and any request for additional relief is denied. Failure to comply in a timely manner with this memorandum and order may result in the imposition of sanctions including dismissal of the entirety of this case with prejudice. Ordered by Judge Richard G. Kopf. (LKL) (Entered: 04/21/2008)
178 Joint MOTION to Dismiss with Prejudice by Attorney Shirley A. Mora James on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Kathy V., Sharon T., John Doe, Greg T..(Mora James, Shirley) (Entered: 04/24/2008)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 25 of 26

04/28/2008
05/12/2008 05/12/2008
05/12/2008 05/23/2008 05/27/2008 05/27/2008 05/27/2008 05/28/2008 05/30/2008 06/11/2008

179 JUDGMENT− Joint MOTION to Dismiss with Prejudice 178 is granted and JUDGMENT is entered dismissing the entirety of this case with prejudice except for the issue of attorney fees. The Court retains jurisdiction to resolve the issue of attorney fees and to enter an award of fees if appropriate. Pursuant to Federal Rule of Civil Procedure 54 (b), the court expressly determines that there is no just reason for delay regarding the entry of a judgment on all claims save for the issue of attorney fees. Ordered by Judge Richard G. Kopf. (LKL) (Entered: 04/28/2008)
180 MOTION for Attorney Fees by Attorney David W. Rowe on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, Greg T..(Rowe, David) (Entered: 05/12/2008)
181 INDEX in support of MOTION for Attorney Fees 180 by Attorney David W. Rowe on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, Greg T.. (Attachments: # 1 Affidavit of Counsel, David W. Rowe, # 2 Exhibit Statement of legal services provided)(Rowe, David) (Entered: 05/12/2008)
182 BRIEF in support of MOTION for Attorney Fees 180 by Attorney David W. Rowe on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, Greg T..(Rowe, David) (Entered: 05/12/2008)
183 BRIEF in opposition to MOTION for Attorney Fees 180 by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez.(Rumbaugh, Michael) (Entered: 05/23/2008)
184 STRICKEN − MOTION for Leave to File Supplemental Brief by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez. (Attachments: # 1 Motion for Leave to File Supplemental Brief)(Rumbaugh, Michael) Modified on 5/27/2008 to add "stricken" text pursuant to Order 185 . (JAB) (Entered: 05/27/2008)
185 TEXT STRIKE ORDER that Pursuant to General Order Number 2006−01, the Motion for Leave, 184 is stricken for the following reason(s): incorrect PDF document attached. The party is directed to re−file the document. Ordered by Deputy Clerk. (JAB) (Entered: 05/27/2008)
186 MOTION for Leave to File Supplemental Brief, MOTION to Extend Time to File Supplemental Brief, 183 by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez.(Rumbaugh, Michael) (Entered: 05/27/2008)
187 MEMORANDUM AND ORDER regarding motion. The motion in filing 186 is granted, and the briefing schedule established in the court's April 21, 2008 order (filing 177 ) is modified as set forth in this order; Defendants shall have until June 2, 2008 to submit a supplemental brief; and Plaintiff shall have until June 11, 2008 to file a reply. Ordered by Judge Richard G. Kopf. (LKL) (Entered: 05/28/2008)
188 BRIEF in opposition to MOTION for Attorney Fees 180 Defendant's Supplemental by Attorney Michael J. Rumbaugh on behalf of Defendants Nebraska Department of Health and Human Services Finance and Support, Nebraska Department of Health &Human Services, Richard Nelson, Nancy Montanez.(Rumbaugh, Michael) (Entered: 05/30/2008)
189 REPLY BRIEF in support of MOTION for Attorney Fees 180 by Attorney David W. Rowe on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, Greg T..(Rowe, David) (Entered: 06/11/2008)

Case: 4:03-cv-03189-RGK-DLP As of: 05/24/2010 06:31 PM CDT 26 of 26

06/20/2008 06/20/2008 07/17/2008
07/17/2008 07/18/2008
07/18/2008 07/02/2009 07/02/2009 07/06/2009 07/06/2009 07/27/2009

190 ORDER denying 180 Motion for Attorney Fees. A separate judgment will be issued. Ordered by Judge Richard G. Kopf. (LKL) (Entered: 06/20/2008)
191 JUDGMENT−Pursuant to the memoranda and orders entered in this case, JUDGMENT is entered for the defendants and against the plaintiffs providing that the plaintiffs shall take nothing on their claim of attorney fees. Ordered by Judge Richard G. Kopf. (LKL) (Entered: 06/20/2008)
192 NOTICE OF APPEAL regarding Memorandum and Order, 172 , Judgment, 191 , Order on Motion for Attorney Fees 190 by Attorney David W. Rowe on behalf of Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, Greg T.. Filing fee $ 455, receipt number 08670000000001246329. (Rowe, David) (Entered: 07/17/2008)
193 REQUEST FOR TRANSCRIPT (Rowe, David) (Entered: 07/17/2008)
194 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal to USCA, 192 , of Memorandum and Order, 172 , Order on Motion for Attorney Fees 190 and Judgment, 191 . Notice of Appeal filed on 7/17/2008 by Plaintiffs Heather V., Jane S., Kevin V., Bill M., Jennifer T., Leslie H., Catherine M., Stephanie B., Conrad J., Christopher H., Michael R., C.W.J., Sue H., Susan R., William M., Jane Doe, Marcia V., Patricia S., Kathy V., Sharon T., John Doe, and Greg T. NOTIFICATION TO COUNSEL − SUBMIT FORMS A &B TO EIGHTH CIRCUIT CLERKS OFFICE. (JAB) (Entered: 07/18/2008)
195 SCHEDULING LETTER from USCA − 8th Circuit regarding Notice of Appeal to USCA, 192 . Case has been docketed under the number 08−2586. (Attachments: # 1 Transmittal Letter)(JAB) (Entered: 07/18/2008)
196 COPY of Opinion of USCA − 8th Circuit (08−2586) regarding Notice of Appeal to USCA 192 . The judgment of the district court is affirmed. (Attachments: # 1 Transmittal Letter)(JAE) (Entered: 07/02/2009)
197 COPY of Judgment from USCA − 8th Circuit (08−2586) regarding Notice of Appeal to USCA 192 . It is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. (JAE) (Entered: 07/02/2009)
198 COPY (regular mail) of Opinion of USCA − 8th Circuit (08−2586) regarding Notice of Appeal to USCA, 192 . The judgment of the District Court is affirmed. (Attachments: # 1 Cover Letter)(GJG) (Entered: 07/06/2009)
199 COPY (regular mail) of Order (Judgment) from USCA − 8th Circuit (08−2586) After consideration, it is hereby ordered and adjudged tht the judgment of the district court is affirmed in accordance with the opinion of this Court. (GJG) (Entered: 07/06/2009)
200 MANDATE/JUDGMENT from USCA − 8th Circuit (08−2586) In accordance with the opinion and judgment of 07/02/2009, filings 196 and 197 and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above−styled matter regarding Notice of Appeal to USCA, 192 . (GJG) (Entered: 07/27/2009)

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-2586 ___________

Bill M., by and through his father and *

natural guardian, William M., and on *

behalf of themselves and all other

*

persons similarly situated; John Doe, *

by and through his mother and natural *

guardian, Jane Doe, and on behalf of *

themselves and all other persons

*

similarly situated; Heather V., by and *

through her mother and guardian,

*

Marcia V., and on behalf of themselves *

and all other persons similarly situated; *

Jane S., by and through her mother and *

natural guardian, Patricia S.; Kevin V., *

by and through his mother and legal *

guardian, Kathy V.; Jennifer T., by and *

through her parents and legal guardians, *

Sharon and Greg T.; Leslie H.;

*

Catherine M.; Stephanie B.; Conrad J., *

by and through his legal guardian,

*

C.W.J.; Christopher H., by and through *

his legal guardian, Sue H.; Michael R., *

*

Appellants,

*

*

v.

*

*

Nebraska Department of Health and *

Human Services Finance and Support; *

Nebraska Department of Health and *

Human Services; Richard Nelson, in his *

official capacity as the Director of

*

Nebraska Department of Health and *

Appeal from the United States District Court for the District of Nebraska.

Human Services Finance and Support; *

Nancy Montanez, in her official

*

capacity as the Director of Nebraska *

Department of Health and Human

*

Services,

*

*

Appellees.

*

___________

Submitted: March 9, 2009 Filed: July 2, 2009 ___________

Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges. ___________

COLLOTON, Circuit Judge.

The appellants, a group of developmentally disabled Nebraska residents, filed an action in the district court1 against several Nebraska state agencies and officials, alleging violations of federal law. The case was settled, and the central question on appeal is whether each of the plaintiffs was a “prevailing party” in the action, such that the plaintiffs were entitled to attorneys’ fees. The district court held that they were not prevailing parties and denied their application for fees. We affirm.

I.

In 2003, Bill M. and other developmentally disabled Nebraska residents (collectively, “the plaintiffs”) filed suit against the Nebraska Department of Health and Human Services Finance and Support, the Nebraska Department of Health and Human Services, and two department directors in their official capacities (collectively,

1The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
-2-

“the State”). The plaintiffs’ second amended complaint sought declaratory and injunctive relief for alleged violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; federal Medicaid statutes, 42 U.S.C. § 1396 et seq., and regulations, e.g., 42 C.F.R. § 440.230(b); and the Due Process Clause of the Fourteenth Amendment. The gravamen of their complaint was that the State unlawfully provided inadequate funding for developmental-disability services, thereby raising the risk that the plaintiffs and others similarly situated would be placed in institutional (as opposed to “less restrictive” residential or community) settings.
In February 2008, the parties advised the district court that they had reached an oral settlement agreement. The district court gave the parties thirty days to reduce their agreement to writing and to file a joint stipulation for dismissal. Unable to meet that deadline, the parties moved for an extension of time, and the court granted an additional thirty days, until April 2, 2008, to make the necessary filing. The court warned, however, that “no further extensions will be granted, and that in the event of noncompliance with [the new deadline], this action may be dismissed without further notice.”
The parties executed a written settlement agreement on March 31, 2008. As part of the settlement, the State agreed to convene “workgroups” to study issues relating to the State’s system of providing services to the developmentally disabled. The State also agreed to implement new procedures for handling requests for such services. For their part, the plaintiffs agreed to dismiss their claims with prejudice, provided that the district court retained jurisdiction to decide the issue of attorneys’ fees.
On April 2, 2008, the parties timely filed a joint motion and stipulation for “approval” of the settlement. In a memorandum and order, the district court advised
-3-

the parties that it was “willing to grant the motion and ‘approve’ the stipulation and related settlement agreement with the following understanding”:
(1) I make no determination that the settlement agreement is good or bad or fair or unfair.
(2) With the exception that I will resolve the attorney fee question as contemplated by the settlement agreement, I retain no jurisdiction to enforce or construe the settlement agreement in the future. Furthermore, my “approval” of the settlement agreement does not suggest that there would later be federal jurisdiction to construe or enforce the terms of the settlement agreement. In other words, the settlement agreement is merely a contract between the parties and my “approval” of it confers no other status.
(3) Plaintiffs’ counsel will be understood to have represented to me that each person signing the settlement agreement for a disabled person has the authority to do so.
The district court asked the parties whether, having reviewed its memorandum and order, they still requested that it grant their joint motion and stipulation for “approval” of the settlement. Both parties certified that they did, and the court granted their motion, subject to the above understanding. The court then dismissed the entirety of the case with prejudice, except for the issue of attorneys’ fees, which it retained jurisdiction to resolve.
The plaintiffs applied for attorneys’ fees under the ADA, 42 U.S.C. § 12205; the Rehabilitation Act, 29 U.S.C. § 794a(b); and the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b). The district court denied the plaintiffs’ application on the ground that they were not prevailing parties, and thus not eligible for fees under those statutes. This appeal followed.
-4-

II.
The plaintiffs argue that the district court erred in denying their application for attorneys’ fees. They contend that they “prevailed” in the underlying action, because the settlement they reached with the State provided some of the relief that they sought. As prevailing parties, the plaintiffs contend, they are entitled to attorneys’ fees under the applicable federal fee-shifting statutes. We review de novo the legal question whether a litigant is a “prevailing party.” Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 992 (8th Cir. 2003).
In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the Supreme Court concluded that a “prevailing party” is one that obtains a judicially sanctioned, material alteration of the legal relationship of the parties. Id. at 604-05.2 Thus, a party that secures an enforceable judgment on the merits or a court-ordered consent decree is a “prevailing party.” Id. at 604. By contrast, the Court implied, a party that obtains a mere private settlement does not qualify, because “[p]rivate settlements do not entail the judicial approval and oversight involved in consent decrees.” Id. at 604 n.7. Indeed, the Court noted, “federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal.” Id.
The plaintiffs here reached a settlement agreement with the State. The district court did not make any determination as to whether the settlement agreement was “good or bad or fair or unfair.” Nor did the district court incorporate the terms of the agreement into its order of dismissal, or otherwise retain jurisdiction “to enforce or
2Although the plaintiffs request attorneys’ fees under a number of federal feeshifting statutes, some of which were not at issue in Buckhannon, we interpret the statutes consistently. Buckhannon, 532 U.S. at 603 n.4; Cody v. Hillard, 304 F.3d 767, 773 n.3 (8th Cir. 2002).
-5-

construe the settlement agreement in the future.” As a result, the parties’ settlement does not entail the “judicial approval and oversight,” id., required for a “judicially sanctioned change in the legal relationship of the parties.” Id. at 605. Because the parties’ settlement “lacks the necessary judicial imprimatur” to confer upon the plaintiffs “prevailing party” status, id., the district court properly denied the plaintiffs’ request for attorneys’ fees under the applicable federal fee-shifting statutes.
The plaintiffs contend that they had no choice but to agree that the district court would not retain jurisdiction to enforce or construe the settlement agreement, because the court threatened to dismiss the case if a written settlement was not finalized. According to the plaintiffs, it was improper for the court essentially to rewrite the terms of the parties’ agreement. The implication is that if the terms had remained unaltered, then the court would have retained jurisdiction over the agreement, and the plaintiffs would have been in a better position to claim status as prevailing parties.
Leaving aside whether the plaintiffs’ status would have been any different, see Christina A., 315 F.3d at 993 (concluding that “the district court’s enforcement jurisdiction alone is not enough to establish a judicial ‘imprimatur’ on the settlement contract” where the court does not have contempt power), we see no merit to their contention that they were forced to agree that the district court would not retain jurisdiction over the agreement. To be sure, the court informed the parties that the action could be dismissed without further notice if they failed to meet the extended deadline for reducing their agreement to writing and filing a joint stipulation for dismissal. This caution, however, was an appropriate means to enforce the court’s deadline and keep the proceedings moving. In its subsequent memorandum and order setting forth its conditions for granting the parties’ motion for “approval” of the settlement, the court gave both parties the option of requesting that it deny the motion if they found the conditions unacceptable. The plaintiffs could have chosen to reject the settlement agreement and proceed with the litigation. If the court dismissed the case simply because the plaintiffs declined to agree to the settlement, then the
-6-

plaintiffs would have been free to appeal and challenge the adequacy of the court’s reason for dismissing the case. We are thus unpersuaded that the plaintiffs had no choice but to sign a settlement agreement over which the district court declined to retain jurisdiction.
For these reasons, the judgment of the district court is affirmed. ______________________________
-7-

 
 No. 04-3263
IN THE UN ITED STA T ES COUR T OF A PP EALS FOR TH E EIGHTH C IRCU IT
- - -- BILL M .. by and through is fath er and natural g uardian . William M.; JOH N DOE. by and through his moth c r a nd natural gua rdi an. Marcia V.; JANE S .. by and through hcr mothcr a nd natu ral guardian. Patri cia S .; KEV IN V., by a nd through hi s mother and Icgal gua rdian . Kath y V.; JENN IFER T. . by and through he r parents and legal gua rdians. Sharon and Grcg T.: MARCUS J.. by and throu gh his parcnts and legal
gua rdian s. Julie and Miles 1.: and on bc ha lfof th cl1lse lves and all ot hcr s imilarly
~ ituat ed .
Pla inri ffs-A ppcllces v.
NEB RAS KA DEPARTMENT OF II EA LTII AND HUMA N SERV ICES FINANCE AN D SU PP OR T; NEBRASKA D EPA RTM ENT OF HE AL T H AND I I UMAN SERV I CES.
Defenda Ilts-A pp e llatlls
ON APPEAL FROM TH E UN IT ED STATE S DISTR ICT COU RT FOR TilE DISTR I CT OF NE BR AS KA
BR I EF FOR THE UN ITED STATE S AS INTE RVENO R
R. ALEXANDER ACOSTA Assista nt Attorncy Gcne ra l
JESS ICA DUNSAY SIL VER KEV I N RU SSELL
Atto rn eys Departme nt of J usticc Civi l R ig ht s Division - Appell a tc Sectio n Ben Franklin StatHITl P.O. Box 14403 Was hin gton. DC 20044-4403 (202) 305·4584

TABLE OF CONTENTS

PAGE

JU RI SDI CTIONA L ST A TEMEN T ..... , ....

ST A T EMEN T O F T ilE CAS E ........ , .................. , ............ 2

SUMMA RY OF A RG UMENT ... , .... , ........ , ...................... 5

A RGU M EN T .... . ... . .. .. ................ .. ............... .. .. .. .. 8

I. Til E DI STR ICT COURT PR O PERLY DECLI NE D TO RU LE ON T H E ST A TE'S ELEVEN TH AMEN D MEN T CII A LL ENGE A T Till S ST A G E IN T il E PROCEE DI NGS ................... 8

I I. CO. G RESS V A LiD L Y A BR OGA TED TH E ST A T E' S

ELEVEN TH A M EN DMENT IM MUN ITY T O C L A IM S UN DER

TITL E II OFTH E A D A IN TH E INSTIT UTIO NA LIZA TIO N

CON TE XT . . . . ..... . .. . ... .

. . . ..... . . . ....... . 12

A. The SlIpreme Courl "... Decisioll I I/ Te nn essee v. Lane Supercedes This Cou r"s Prior D ecisioll III A isbrook v. C it y o r M aUlllcll e .................................. 13

B.

COI/ sri /Il lional Righls Implic{//cd . . .................. . . 17

c.

Jl islul'ica/ P redicate ............................ .

19

I . Lan e CO l/ clusive /y Es tablis hed The Adequacy Of

The Pretiit.:lIle Fo r Tille " 's App/icalio/l To

Disuimill afiV/I I II All PlIhlic SCl'\'ices ....... .

19

2 . Historical Di.H:r imil1(flioll Against Peuple lVilh Di.mhililie.\' Slll~je(;/ To IIISlilllliollali:::lI1ioll ......... . 21

D . COIIgl"llcllce A m/ Proportionality . ..... ........ ........ 27

CO NCLUS ION

... . . . . . . . . . . . . . .... ~'0-

CE RT IFICA T E OF COM PLI ANCE

CUlT lFICAT E OF SERV ICE

TABL E O F AUT HORITI ES

CASES:

PAG E

Alexander v. C/IO (tle, 469 U.S. 287 (1985) ..... . .. . .............

. . 22

Alsbrook v. Citl·4 MlIlIlIlelle. 184 F.3d 999 (8t h Cir. 1999) (en bane). ee rt. gmnted . 528 U.S. 11 46 (2000). ee rt . di sm issed. 529 U.S. 1001 (2000) . . . . . . . . . . . . . . . . ............................... passilll

Blodge lf v.lloldell. 275 U.S . 142 (1927) .. .. ... .

. .... 9

Brooks v. Flah erty. 902 F.2d 250 (4th Cir.). eert. den ied. 498 U.S. 951 (1990) . . 18

Buck v. Bell. 274 U.S. 200. 207 (1927) ................................. 23

CityoI Boel'ncv. Flores, 52 1 U .S. 507 (1997) ..... .... ................. . 14

Ci ty (~fClehll/'lle v. Cleh lfrne Living O r .. IlI c.. 47 3 U.S. 4 32 (19 85) .... 18,22.23

Clark v. C"h"u. 794 F.2 d 79 (3d Cir.). ee l1 . denied.479 U.S. 962 ( 1986) ... 18

Doe v. Neb raska . 345 F.3 d 593 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 10

Elllployel!.\· (~/ Dep '/ (~lPllh. Heallh & IVc(jill'(! v. Department (~/Pllh. Health & lVeljill·e. 4 11 U.S. 279 (1973) ....................... .... 22

Ex PaneY""I1!:, 209 U.S. 129 (1908) . . ........ . .. , . .. . .. . . . . .. , . .. , ..... 5

Jacksoll v. Indiana. 406 U.S. 715 (197 2) . ........ ....... . . ............ . 18

Jim C. v. Arka1/sas Dc:p 'f o/EdllC" 235 F.3d 1079 (8th Cir. 2000) (en bane).

eert. deni ed. 533 U.S. 949 (20 0 I) ...........................

10

Kimel v. Florida Btl. o/Regellls, 518 U.S. 61 (100 0) ........... ,......

12

Lyllg v. NOrlhll'esl /lldia l1 Cellle/elY Pl'Olec:/iI'e Ass '/1.4 85 U.S. 439 (1988) . . .. 9

Miller v. Killg. 384 f. .3d 124 8 (111h C ir. 2004) ....... .

20-~ I

Nel'(l(/a Dep', o/ lIlImoll Res. v./ / ihhs. 538 U.S. 721 (2003)

13,27.29.30

Nonhem Sf({U,:s POl\'er Co. v. F(!dero/ Tral/sit Admin .. 358 F,3 d 1050 (8t h Cir.1004) ......................... .. ............... ..... 10

- !1 -

C ASE S (continu ed ):
alllls ieadv. L.e.. 527 U.S. 58 1 (19 99)
o 'Connor v. Donaldsoll . 422 U.S. 563 (1975) .... . .... . ..... . . . .

PAGE
p a S S 11II
18- 19.29

Pallll ore v. Sidoli. 466 U.S. 42 9 ( 19 84 ) .. . ...... .. .. . ... . . . . .. . . .

18

Parhalll v. J.R .. 442 U.S . 584 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Penllllllrst Stme Sck & f/osp. v. Halderman. 4 5 1 U.S. 1 (198 1) . . .

21

Puerto Rico Aq/led /fCi & Sewer Alllh. v. Me lcaff & Ed(~v. IlI c.. 506 U.S. 139

(1993) ...... .. . ........ ......... . . . ........ . . . ... . . .

2. I I

Romer v. E WlIIs . 5 17 U.S . 620 ( 1996 ) . . . .... . ........ ... ...... . .. . . . .. . IS

SpeclOr M % r SIIC. v. McLallghlin . 323 U.S. 101 ( 1944) .. ........ .... . ... .. 9

Tellll e.\·.\·ee v. Lall e. 124 S. Ct. 1978 (2004 ) ....................... .. . 1)(I.\"silll

U niled Sl(Iles v. Virg inia . 51 8 U. S. 5 15 ( 1996) ................. .. .. . .... . 30

Unil'ers ity ()I A /a. v . Carrel! , 53 1 U.S. 356 (200 I) . ................ ... . . . . 18

Yoallg v. Nay es . 2 18 F.3d 850 (8 th C ir. 2000) . ..... ... . . .. . .. . .. .. . 13. 17

YOlllIg herg v. I/ollleo. 457 U.S. 307 ( 1982 ) . ...... . . . . ... . .. . . . . . . . 18. 19 , 29

C ONS TIT UTI ON & ST AT UT ES :

PAGE

Unit ed Sla tes Co nsti tutio n

Eleve nth Am endme nt

. . . . . . . . . . . . • . . . . . . . . . . . . . . passilll

Fourt ee nth Amen dm en t . . . . . . . . . . . . . . . . . . . . . . . . • . .

pas.HIII

Du c Process Clau se ........... . ....... . .. . ........ . . . 15 . 28

Equ a l Protect ion C lause ............. • ... . ....... 14.16. 17. 28

Sec ti o n S. .

. ..................... .. ..... . ..... ... . 15

2S U.S.c. 129 1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -o

2X U.s.c. 133 1 ..... .. . . .. . ..... .. . ... .. .. .. ...... . . ... . . .. .. . .. . .. . I

- III -

STATUTES (continued):

PAGE

America ns with Disabilities Act of 1990 (ADA), 42 U.S.c. el seq.

42 U.S.C. 12101(aX3)

.... .. .. . .

. ........... 20

42 U.S.C. 12 102(2) ................................... . ........ 2

42 U.S.c. 12131-12165 (Title II ) .... . . . . .. .. .... .. . .. .. . . .. . paSS1I1I

42 U.S.c. 12131(1)(A) . . . ......... . . . ............. . ......... 2

42 U.S.c. 12131(1)(B)...

. .................................. 2

42 U.S.C. 12131(2) ...... . .

........

. ..... .. . . 2

42 U.S.C. 12132

... . ...... . . . . ................ 2

42 U.S.C . 12133 ......... ......................... .. . ....... 3.9

42 U.S.C 12134 ...........

. . ...... . .

. . . .. . ... .... .. 2

42 U.S.C . 12202 ................... .

. ... 3

Civil Rights Act of 1964 (Title VI). 42 U.S.c. 2000d el self.

42 U.S.C. 2000d-7 ................ .

.. 4

Civi l Rights of In stitu tionalized Persons Act. 42 U.S.C . [997 el seq .. . . 24.25

42 U.S.C . 1997b(a) ...

. ..... .

. ..... 25

Develop mental Disabilities Act of 1984. 42 U.S.c. 6000 ef seq. .... . . . ...... 26

Fami ly Medical Leave Act of 1993,29 U.S.C . 2601 et seq. 29 U.S.c. 26 12(a)( I)(C) .... .. .

.. . . ... 13

Medicaid Ac !, 42 U.S.c. 1396 et .. eq. . ............................... 4

Protect io n and Advocacy for Mentally III Individua ls Act of 1986.

42 U.S.c. 1080 I e l self. . . . . . . . . . . .

. ..... .

.. 24

Rehabilitation Act of 1973.29 U.S.c. 70 I cl seq.

29 U.S.c. 794 (Section 504)

....... .................. .... passim

REGULATIONS:

28 C.F.R. 35.130(bX7) ...... . . . . . .. . . . . . . . . . . . . .. .. . . . . . . . . . . . .. .... . 3

28 C.F .R . 35.130(d) .. ..... . . .

. .. .. .. .......... . .. .... . .......... 3

28 C'.F. R. 35 . 140 ..

. ....... , .......... 2

28 C.F.R. 41. 5 1(cI)

............... 9

- IV -

LEGISLATIVE HISTORV:

PAGE

Staffoft hc lI ouse Co mm . o n Educ. and Labor, 10I st Cong., 2d Scss ..

Legis /ative /{ isIOIY vIPI//}. L. No. /0/-336: The Americal/s IVil1i

Disabilities A CI (COI11I11. Print 1990)

Vo l. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

24

Vol. 3 ................................................. 24

H.R. Rep. No. 4 85. PI. 2. [ 0 [ 51 Cong o2d Sess. ([990) .... •....•.. ......... 3 [

MISCELLANEOUS:

California A It 'y Ge n.. Commis.~·iol1 0 1/ DisahilifY: Fillal Report (Dec. 19X9) .... 24

D. Rot hman . The Discovery oflhe A.\yllllll (J 97 1) .... .. ................... 22

M. Burgdorf & R. Burgd orf, A lIi,Hory o/Ull cqllal TreaflllcllI, 15 Sa nta C la ra Lawyer 855 ( [975) ...... ............ ........ .... ............. 24

Mental Di sa bility and th e Ri g ht to Vot e. 88 Yal e L.J. 1644 (1979)

. .. 23

T . Cook, Th e Ame ri ca ns wit h Disa biliti es Act: The Mo ve to Int egration, 64 Temp. L. Rev. 393 (199[) ......... .. ... . ............... .... . 23

United S iales Civi l Ri ghts CO I11Il1'n. Accommodating the Spec/nllll of

Individual Ahilities ( 1983) . . . . . . . . . . . . . . . . . .

. . . ...... . 22·24, 3 1

-v •

IN TH E UN IT ED ST A T ES COUR T OF A PP EALS FO R TH E EIGHT H CIR CU IT
No. 033263
B IL L M.,by a nd throu g h is fat h e r a nd nanl ral gua rd ian, W ill ia m M.; JO I-IN DOE , by and th roug h h is moth e r a nd n at ura l gua rd ian , Ma rc ia V.; J ANE S., by a nd t hrou g h h er mother and na tura l gua rdian , P at r icia S.; K EV IN V .. by and thro ug h h is m ot he r an d legal gua rdia n , Kat hy V.; JENN IF ER T., by an d th ro ug h he r pare nts a nd lega l g u ardia ns, S ha ro n an d Greg T. ; M A RCUS J.. by a nd throug h hi s pa rent s a nd legal gua rd ia n s. J u lie and Mi les J. ; a nd o n bc halfo fth clllse lvcs a nti a ll othe r si m ila rl y
s ituated,
Plaint i !'Is-A ppcllccs
v.
NE BR AS K A DEPA RT MEN T OF II EA LT II AN D HU MAN SE RV IC ES FINANCE AN D SUPPORT; NEB RASKA DE PA RTME NT O F II EAlTi l AN D H UMAN SERV ICES,
Defcnda nls-App clla nts
ON A PP EA L FR O M TH E UN ITE D ST A T ES D ISTRI CT COU RT FOR Ti l E DISTR ICT O F NE BR AS K A
-----~
B RI EF FO R T il E UN ITE D STA T ES AS INTE RVENO R
J UR ISDICTIO NAL STATEMENT
P lai ntiffs' co m plai n t alleges. amo ng othe r thin gs, violati()n~ of T itle II oflhe
Americans with D isabilities Act. 42 U.S.c. 1213 1 e( seq. T he d is trict co u rt had
jurisdioion pnrsu<lnt to 28 U.S.c. 1331. On Augus t 6, 2004, th..; district court
denied dl'f~ndants ' motion to dismiss som~ of plain ti ffs ' claims \111 1: lcventh

-2-
Ame ndm e nt im munity grou nd s. Defendants filed a timely no tice ofappeaJ on Septembe r 7. 2004. Th is Court has jurisdiction pu rsuan t to 28 U.S.c. 1291. See Puerto /?i co;/qllcdllci & Sc\\'crAlilh. v . Me/calf& Ed{~v, In c.. 506 U .S . 139, 147 ( 1993).
STATEMENT OF THE CASE I . Titl e rI of the Ame ri ca ns with Disabi l iti es Act (A DA), 42 U.S.c. 12131 el seq., provides that "no qualifi ed individual wit h a disability sha l\. by reason of such di sab il ity. be exc luded frolll participatio n in or be d eni ed the be nefits of th e
se rvices, programs. or ac ti viti es ora publ ic e nti ty. or be s ubj ec ted to di sc rimi nation
by a ny s uc h e ntit y." 42 U.S.c. 121 32. A " public e nt ity" is defined to inc lud e "a ny State or local gove rnm en t" and it s co mp onent'>, 42 U.S.c. 12131( 1)(A) & (8). Th e te rm "d isab il ity" is d e fined as "a ph ysical or mcntal impai rmcnt that s ubsta ntiall y limi ts o ne o r morc of the major life acrivit ies ofLanJ ind ivi duaL a leconl or suc h a n impairment ; or being rega rde d as ha vi ng sHc h an impair me nt." 4 2 U.S.C. 121 02(2). A "qua li fied individual wit h a disability" is a person "w ho. w ith or wit ho ll t
reaso nable modifi catio ns * * * meets the esse ntial e li gibility require ments" for the
go\'ernmcntal prog ram or sc rvice. 42 U.S.c. 12 I3 1(2); 28 c.r.R. 35.140. 1n cnacli n g the ADA. Con g ress instru cted the A tlorn cy G c n('ral to p romu Ig ate
regulations to intcl1Jrct and imp lem(,111 T lIlc II of the Act. Sce 42 U.S.C 12134 . Th e

Title II regulat ion s requ ire. among othe r thi ngs. that a "public entity shall admini ster services, programs. a nd activities in the most int egrated se tting appropriate to the
needs of qu a li fi ed ind ividuals wit h di sabi Iiti es." 28 C. F. R. 35. 130(d) . In Olmstead
v. L.C, 527 U.S. 581 (1999), t he S upreme Coun int erp reted Titl e II in li g ht of th e in tegratio n regulation a nd he ld that ,,[ uJnju sti tied iso latio n" of indi v iduals wit h di sabilities in in stituti o ns "i s properly regarded as di scrimi natio n based o n di sability," in violatio n oCt he A D A. Id. at 597. A t the sa me time , th e plurality recogni zed that th e Stat e's responsibility und e r the Act "is no t boundless." fd . at 603 (plurality) ; see also id. at 607 (Stevens, J.. co nc urrin g) (same). States need only mak e "reasonabl e modificat io ns" to avoid di sc rimination , w hi c h docs not in cl ud e c hanges th at wou ld "fundamentally alter the nat ure oftll e se rvice. program , o r act ivit y." 28 C.F .R . 35.130( b)(7); see Dlmsfead. 527 U.S . at 603 (pl ural ity) ; id. at 607 (Steve n s, J., concurring).
Ti tle II may be e nforced throu g h priva te suit") agai ns t public e nti ties. 42 U .S.c. 12133. Co ng ress exp re ssly abrogate d the States' Elevent h Amen dment immunity to private su it s in fe de ra l court. 42 U.S.c. 12202.
Sect ion 50 4 ortlle Rehab ilit atio n Act of 19 73. 29 U.S.c. 794. imposes th e sa m e antidiscrimination requ ireme nt on recipie nt s of fe deral funding. See Olmsfcad. 527 U.S. at 590-592. Co ng re ss express ly cond itioned receipt of federa l

-4fu nds on waive r of the States' Elevent h Amen d ment im mun ity to private su its to enforce Sect io n 504 in fe de ral co urt . See 42 U.S.C . 200 0d -7 .
2 . Plai ntiffs a rc a g rou p of in div iduals w ith m en ta l reta rda t io n and o th er developme ntal d isa b ilities who sec k medical services from th e State of Ne bras ka (State) th roug h p rogrllills th at receive fe d era l fi na nc ia l ass ista nce und e r th e Medi ca id Ac t, 42 U.S.c. 1396 el seq. See A pp. I. Amo ng ot h e r th ings, pla in tiffs a ll ege that the S tate is violat in g Ti tle II o f th e ADA a nd Sectio n 504 o f th e Re hab ili ta t io n A ct . by o ffe rin g p la inti ffs me di cal sClV ices in inst ituti o na l setti ngs whe n se r v ices co u ld be prov ided in less res tri ct ive co mm u n ity pl ace men ts w itho ut fund ame n ta ll y alte rin g th e na ture uf th e Sta tc's med ica l p rog ram s o r imposi ng an und ue fi nanc ia l o r a dmini st rat ive bu rd e n. App.27-28. 1 Pl a int iffs s ued the s tate agenc ies respo nsibl e fo r admini ste ring the State's Med icai d prog ra ms as well as va rio ll s state offici a ls in the ir officia l capaci ti es, see kin g d ec larato ry a nd prospect ive inj un ctivc re li ef. Sce App. at 5-6, 35-39.
O n Oc to ber 17, 2003, the State moved to d is mi ss p lai nt iffs ' T itle II cla im s against the state age n cies , a rgui ng that Cong ress did n o t val id ly ab roga te the State's
Plaintiffs have a lso brought claims un der th e Med ica id Act and its lInp leme nti ng rcgulatio ns. the Fourteenth A mc ndment. the Nebr3ska Co nstitution. and va rious state law s and regulations. See App. 2R-.35. None of those claims is at issue in th is appeal.

- 5soverei g n immunity 10 th ose claims. Th e Stat e did not . ho weve r. ra is e an Eleventh A me ndm e nt c h a ll enge 10 plainti ffs' Sec tio n 504 claims and con ceded tha t pl a in tiffs
co uld purslie th ei r T itle II c la ims aga in st the slate o fficials unde r Ex parle YOlll/g,
209 U. S. 129 (1908).~ O n Aug ust 6, 2004 . the d istrict CO lirt deni ed the State 's Illo ti o n to di smi ss. Ilavin g "care fu lI y rev icwcd th e argull1 e nts of th e defe nda nt s." th e d is tri ct CO lirt co nc lude d th a t "a t this stage in the procee d ings di smi ss a l wo uld be inapprop riate." Ap p. 46. Th e State then filed thi s in te rlocuto ry <lp peaL
SUMMARY OF ARGUMENT Althou g h th e Stat e proceed s from th e ass umption that th e d istri c t COLIrt rejec ted it s c la im o f sovere ig n immunit y o n th e me rits, it appea rs th at the co urt simp ly pos tponed adjud ica tio n of the Eleve nth A me ndme nt issue unt illa le r in lh e procee din gs. See App. 46. S uc h a co urse is appropri ate in thi s case. Th e S tale has c ha ll e nged th e I,; o nsti tuti o nality of Titl e II 's abroga tion prov is io n, but docs not co ntest p la in tiffs' ri ght to pursll e essenti a ll y id ent ica l cla im s u nde r Sec tio n 504 . Acco rd ing ly. even if the d ist rict co urt held t he T itle II abrogatio n prov isio n unconsti tu tio na l in thi s co nte xt, the Sta te wo uld still be requi red to defe nd agai nst th e sa me k gal ,111(\ factu al a ll eg ati o ns Lind er t hc pa ra ll e l prov isio ns of th e
2 T he State raised othe r no n- Elevent h Amendme nt g rou nds ror dismissnl of thesc a nd ot h ~r daims. but no nc o r thosc ground" is al issHe in this appea l.

-6 Re habi li tation Ac t. Ifp lain tiff.,) sli cceed in their Section 504 claims . there would be no need to decide th e ir Titl e II c lai ms o r the State's Eleven th Ame ndm ent objec ti on to those claims. Co nversely, if pl a inti ffs can not prove a vio lation of Sect ion 504. they would not b e able 10 prove a vio la ti o n of T it le II e ith er and. again. there would be no nee d to ad dress th e State's Eleventh Am e ndm e nt a rg um e nt. Thu s. de ferring a ru ling on the S tate 's Eleve nth Amendment cha ll e nge to Ti tl e II ullt il after adjudication 0 f Ih e Sec ti o n 504 c laims will avoid th e need to dec ide a hard co nsti tutional qu es tio n without imposing an y additio na l lit igat io n burd e ns o n th e Sta te . Under these un iq ue c irclimsta nces , th e di s lri ct cou rt properly decli n ed to gran l th e S tate 's 1110 lion to di smi ss at this t ime.
In any eve nt , the S ta te's Eleventh Amcndment arguJ1lcntl ack s merit. Co ngress ma y ab rogate a S tale's sove reig n immunity pursuant to a va lid exercise of it s powe r to enfo rcc th e Fourteenth Amendment. Viewed in li g ht of Tellllessee v. Lane, 124 S. Ct. 1978 (2 004 ). Ti tle " of the Am cr ica ns wit h Disab il ities Ac t is val id Fo urt ee nth A me ndm e nt legisl at io n as applied to cases implicating institutionalization. In Lalle. the Co urt found th at "Co ng re ss e nacted Ti tle II against a bac kdrop o f pr.:rvas ivc 1Illcqlla llrc.ltlllc ll t in the ad mi nistration o f state servi ces a nd p rog rams. including systemnlic de pr ivatio ns orrll nu ame ntnl ri g ht s." It!. a t 1989 . T he hi:-.lO ry of ull co nst innio na l di sc rim inatio n. th e Court held . author ize d

- 7Cong ress to enact prophylactic leg islation to address "public se rvices" ge nerally, see
id. at 1992, includin g in stit utio n al services fo r peop le wit h d isabilities. In any case, th e re is amp le support for Co ng ress's decis io n to exte nd Tit le II to the co nt ex t of
insti tutio n alizatio n.
Tit le II . as it applies to institutionali za tio n, is a co n gruent a nd proport ionate respo nse 10 that reco rd. Title II is carefu ll y tailored to respec t the Slate's legitimate
inI e rests while p rotecting agai n st the risk of unco nst itutio nal discrimination in thi s area and re medy in g th e li ngering effects of discrimination agai n st people wit h di sabi lil ies in the conte Xl of inSlilUtio nal izat io n . Title II on Iy requi res co !TImun ity place ments whe n a State 's ow n treati ng professio na ls recommend it , a nd on ly th en if a placement ca n be provided w ith o ut impos ing a n undue burd en on th e State o r a fundamental alteration or th e Sta te's program s . Thu s li mited, Title 11 ofte n app li es in thi s co ntext to prohibit di sc rim in atio n ba sed o n hidd e n in vid ious a ni mus that would be difficult to detect o r prove directly. Moreove r, in in teg rati ng pcople wit h disabilitie s into co mmunit y se ttin gs. Title 1/ acts to re lieve the irratio na l ste reotypes Co ng ress found at the base of much uncon stit utional di sabil it y di sc rim1l1 ation.
These limited proph y la(,;ti c and rcmedialmcasurcs, judged aga in st the backdro p of pcrvasi vc unconstit utio nal dl scrim ination til at Cong ress found exists both in in stitu tional se ttin gs and in other areas of government se rvices. represent a

- 8good fait h effort to ma ke meaningful the gu arantees orthe Fourteenth Amendment. not an illi c it a tt e mpt to rew rit e th em . Acco rdin g ly, Co ng ress valid ly abrogated th e
S tate' s sovereign im m u n ity to plaintiffs' Ti tle I I c laim s in th is casco
ARGUMENT
THE DISTRI CT COURT PROP ERLY DECLINE D TO RULE ON THE ST ATE'S ELEVENTH AMENDMENT C HALLENGE
AT THIS STAGE IN HIE PROCEEDINGS Although the di st rict court's order is not ent irely clear. it ap pears th a t the co urt did not reject the S tate's Eleve nth Ame ndm e nt arg ul11ent. but s imply dec lin ed
to rule on it at thi s point in the casco The court stated that ha vi ng "carefu ll y reviewed th e argu m ents ort he d efend ants. (1/ ,ltis stage illih e proceedings di s mi ssa l would be iI/appropriate. " Ap p. 46 (e mpha sis added). Thus. the Co urt
d id not rulcollt acce ptan ce orthe State's a rg u1l1\!nt a t a later stage in the p roceedin gs. Moreover, the court ' s us!.! of the wo rd "inappropriate" furth e r sugge sts a n exerc isc o f disc rc tio n regarding the timin g of its rulin g, rath er than a ruling o n the mc ri ts of the Illotion i ~c l f. Und e rs too d as a ucc is io ll to postp o ne
or adjudicat ion th e Slate 's Ele ve nth Am c ndm !.!Jl t c laim s. the d istrict CO lirt 's order
was e nt irely ap propriat e under the eirc um st;ulccS of thi s casco

-9Th e Sta te's Eleve nth Amendm en t argument challenges the consti tuti o nali ty of Cong ress's abro gatio n of th e State'S sovereign immun ity to claims under Tit le II. Co ns id e rin g a co ns titu tio na l c halle nge to an act of Co ng ress is " th e graves t a nd Illos t de li cate dut y that [a1 Court is ca ll ed on to perform, " B/odgell v. Holden. 275 U.S . 142, 14 8 (1927) (opinion of ll olmcs. .I .). " Iflh erc is one d octr ine morc dee p ly roo ted than a ny ot her in the pro cess of co nstitutional adj udicatio n. it is that we
oug ht n ot to pass o n question s ofcons tilU lionality * * * un less slich adj ud icat ion is
unavoidabl e." Spector Motor Servov. lv/cL(lugh/ill, 323 U.S. 10 1. 105 ( 1944 ). Acco rdin g ly, a "fu ndam e nt'll and lon gs tandin g princip le of j udic ia l restrai nt require s that co urts avo id reachin g const ituti o nal qu est ion s in adv,mcc of th e I1cccssi ty of dcc id ing th e m." Lyll.!,! v. Nort h west Indilln Cem eJelY Protective Ass 'n. 4S 5 U.S. 439. 445 ( \ 988).
In thi s caliC. po stpo nin g adjudication of the State's Elcventh Amc ndm e nt c ha ll engc will avoid th c nced to dcc id e the cons tituti o nal qu cs ti o n. Plai ntiffs ha vc b roug ht parallel c laim s un der Sectio n 504 of the Re habilitation Act. 29 U.s.c. 794 . w hi c h provides the sa mc right s a nd rCllledit.'S as the A DA in this a rca. Sec
OIIllSleac/ v. L.e.. 527 U.S. 581. 592 (1999) c r itIc 11integration regu lation sam c as
predecessor rcq uircme nt und er Sec t iO Il 504. 28 C. F.R. 4 I .51 (d»; 4 2 U.S.c. 12 133 (Ti tle I I remedies same as th ose available under Sectio n 504). The State has not

- I 0c hall enged th e const ituti onality of Sec lio n 504.3 nor sought di smi ssa l of t hese
c laim s o n Elevent h Amendme nt g rou nd s. If plaintiffs preva il o n th ei r c la im s under Section 5 04. it w ill be un necessa ry 10 adjudicate thei r c laim s agains t the state agencies under Titl e II . On the other ha nd. ifp laintiffs crowe! esta bl is h a vio lati on of Sect io n 50 4. t hey wou ld !let be abl e to prove a violat io n of Titl e II e ith e r an d , again. th e court can avoi d th e Eleve nth Ame ndm e nt iss ue by ru li ng in th e S tat e's favo r on the merits of th e Ti tle II clai m. Sec NO r/he m Stales Power Co. v. Federal Transit Admin .• 358 F.3d 1050. 1057- 1058 (8t h eif. 2004)(dcclini ng to rule on E leve nth A me ndm e n t d efe nse when judg me nt prope rly iss ll ed in fa voref de fendant on the mer it s).
Thus, regard less of th e outco mc, th e di strict court's reso lu t ion of plaintiffs' Sectio n 504 c laim s will avoi d th e need to rul e o n th e State's co nstitut io na l c hallenge to th e Titl e II abrogat ion provisi on. In these ci rcu mstances , bas ic p rincipl es of
judicial res tra int and co nst it utiona l avo idan ce st rongly s up pOri the di st ric t court's decis ion to d e ny the Sta te's mot io n to d is mi ss at thi s po in t in th e l ili gatio n .~
) See Duc v. Nt'h l'os!.:a, 345 F.3d 593 (St h Cir. 2003) (rejL'Cti ng co nstitut io nal
c halle nge to Sct:lio n 504); Jim C. v. Arkallsas Dep 'f (~/'EdIl C., 235 F.3 d ]079 (8 th Ci r. 2000) (en h atH.:) (same), cer!. de nied , 533 U.S. 9 49 (2001). ~ If thi s COll rt \\'c re un ce nain w he th e r the di strict CO lirt int en d ed 10 d efe r adjudication orth~ State's Illotion, the sam\! principles ofconst itu lional avoidance shou ld lead this Cou rt to remand the cnse to the di strict cOlin w ith instructions to
(co ll tinll cd ... )

-I 1Th e fac t th a t th e State's co nstit u tio na l c laim is ground ed in th e E leventh Ame ndment docs no t req uire a di ffc rc nl resu lt . g ive n the un iq ue c irc um stances of t hi s case . It is tru e tha t Eleve nth Ame ndm e nt clai m s ordi naril y m ust be dec ided ca rl y in th e liti ga ti o n and , if rej ec ted. pe rmi tted immed iate rev iew by in tc rl oc utory appeal. See, e.g.. Puerto Rico A queduci & Sewer AUllt. v. Melc{/~l& Eddy . IlI c.. 506 U.S . 139, 147 (\993). Thi s is beca use the Eleve nth Amendm ent co nfers an imm uni ty from suil. not just a defe nse agai ns ll iabi lity. Sec ibid. Ilowe vcr. in this case , th e S tat e docs no t ra ise a n Elev enth Ame ndm ent o bjecti o n to lit igatio n und e r Sec tio n 504 . No r docs th e Sta te d c ny th at th e Sec t io n 504 liti gati o n will res ol ve ex ac tly the sam c f<le llla l a nd lega l iss ucs Ih <lt a rise unde r T it le II. Acco rd ing ly. deci d in g the State's Eleve nt h Amen d me nt c la ims at Ih isjunc lU rc w ill not ad va ncc a ny Eleve nth A mc ntlm c nl inte rest in avo idin g th c indi g nity or burd c ns o f unaut hori zed lit igati o n agai nst th e S tatc.
J( ...co ntin ucd ) am e nd it s o rd e r 10 m a ke clear tha i th e S ta te's mIlli on is d e n ied w it hout preJ ud lcl.' .

-1 2II
CONGRESS VALIDLY ABROGATED THE STATE'S ELEVENTH AMEND"IENT IMMUNITY TO C LAIMS UN DER TITLE II OF THE ADA
IN THE I NSTITUTIONALIZATION CONTEXT !fthis Cou rt co nclu d es that the district court rejected th e State's Elevent h Amendment c laim, we would argue th at th e di strict COlirt' s dec isio n was co rrect. Alt hough the E leve nth Amendment o rdina ri ly renders a State im mun e fro l11 suits in fe dera l cou rt by pri va te c iti ze ns. Cong ress may ab roga te the State's immu nity i f it "u nequivocally ex pressed its intent to abrogate that immun ity" and "acted pursuant to a valid grant o f const illltiona I au thority." Kimel v. Florida Bd. a/Regenls, 52}) U.S. 62, 73 (2000). Th ere is no quest io n that Congress un equi voca ll y exp ressed ils in te nt to a broga te the State 's sove re ig n immu nity 10 claims und e r th e ADA. Sec 42
U.S.c. 12202; Tenllessee v. Lane, 124 S. Ct. 1978. 1985 (2004). Mo rcover, it is sCll led that "Co ng ress ca n ab rogn te a Statc's sove reig n imlnunity wh c n it does so
* pursuant to a va lid exercise of its power un der 5 of til e Fou rt eent h Amendm e nt to
e nfo rce th e substanti ve gutlra ntces orthat Amcmltnc nl." fhiC/ . Beca use Titl c II is valid legislation to I! n fo rce the Fourteen th Amendme nt in the context of inst itutiona liz:ltion. Lhc A DA nbrogat io n provision is valid as applied 10 this casco

- 13A. The SlIpreme COllrt 's Decision III Te nn essee v. Lane Supercede.\· This
COllrt's Prior Decisio/l III A ls brook I'. Ci ty Of tv! au melle In arg uin g to the contrary, the S tate re lies o n this Court 's prior dec isi on in
a a AIsh/"(Jok v. City vIM(fumelle, 184 F. J d 999. 1 I (8th Ci L 1999) (e n ban c). cert.
gra nt ed , 52R U.S. 11 46. ccrt. di smi sse d. 529 U.S. 1001 (2000 ). which held that Title II was in va lid Fourt eenth A me ndm e nt le g is la tion in all its a ppli cat ion s . That holding . howeve r, has been s uperceded b y th e Supre me Cou rt' s mo re rece nt decision in Tennessee v. Lal/c, 124 S. CI. 1978 ( 20 04 ).5 Accordin g ly, the State's E leve nth Amendmentl:laim lllll st now bc considcred in li g ht of [ail e. Sce Youllg v. Hayes, 2 18 F.3d 850, 853 (8t h C iL 2000) (pa nc l no lon ge r bound by prior panel o pini o n when in terve nin g S uprcmc CO Ull case is in co nSiste nt wit h previ o us opi nions).
In Lalle, th e Sup re me COU lt co nsi dered the claims of two plaintiffs, George Ln nc nnd Beve rly Jon cs, " both of w hom a rc par;:lplegics w ho usc wheelchairs for m obi lit y"nn d w ho "c la imed th at they were d e ni e d access to. a nd thc se rvices oCt he state court system by reaso n of their di sab iliti es" in vio lati o n of Title II. Lalle.124 S. CI. at 1982. La ne was a defendant in a c rimin al proceeding he ld on the seco nd
5 Alshruok was a lso decid ed p ri or to the Sup reme Court's decision Nev(u!" Department (~/HIIIIWII Resources v. t-lihbs. 531:: U.S . 72 1 (2003). w h ic h hcld that the f.11l1i1y m ed icalleave provision of the Fam il y Medical Leave Act. 29 U.S.c. 2612(a)( I )( C). is \'alid Fou rt ee nth Amend mcnt Icgi:-;Iatlon.

-14 -
floor ofa courthouse with no elevator. Ibid. "Jones. a certified court reporte r. alleged that she had not been able 10 gain access to a number ofcount y cou rthouses. and. as a resu lt . has lost bot h work and an opportunity to participate in the judicial pro cess." Id. at 1983. The State argued that Cong re ss lacked the authority to abrogate the State's E leventh Amendme nt immunit y 10 these claim s. a posi ti o n accep ted by this Court in Alshrook. Sec 184 F. 3d at 10 IO. The Supreme Co urt in Lalle di sag reed. See 124 S. CI. at 1994.
T o reac h this conclusion. the CO llrt applied the three-part analysis for
FourLcc nlh J\ mcndll1 cnt legislatio n created by City o.f' Bo el"l/ e v. Flores. 52 1 U. S.
507 (1997). Th e Cou rt co ns idered : ( I) th e "constitutional rig ht o r rig ht s that Congress soug ht to enfo rce w hen it enacted Title II:' Lane, 124 S. Ct. at 1988; (2) whether there \V as a hi story of unconstitutiona l di sab iIity di sc rim ination to support Co ngress's delC rminatio n that " inadequate provi s ion of pub lic se rvices and acce ss to public facilities was an appropriate s ubj ec t for prophylactic legis lation ." id. at 1992; and (3) "w het her T it le II is an ap propr iat e response to th is history and pa ttern of unequal treatment." as ap pli ed to th e cbss of cases implicati ng access to judi c ial se rvices. INd.
With respect 10 the first question, the Court found that Title II enforces ri g ht s under the Equal Protection Clause as well as an array of rights s ubj ect 10 heightened

-I 5-
co nst itutional scm tin y under the Due P rocess Clause of th e Fourteenth A mendm e nt. See Lalle. 124 S. C I. at 1988. With respect to the seco nd qu estio n. t he Co urt co nclusive ly found a suffic ie nt hi sto rica l predicate of un co nstituti o nal disability di scri min a tion in the provi sion of public se rvices to justify e nactment o ra proph ylac ti c re med y pursuant to Co ng ress's a ut horit y under Sec tion 5 of th e Fourt ee nth Ame ndm e nt. Sec id. at 1988- 1992. And finally , with respec t to the third question, the Cou rt found that th e cong ru enc e and proportionality crIhe re medi es in Titl e II s hould be judged o n a catcgory-by-ca tc go ry ba sis in light of th e particular co nstitut io n a l rig ht s at sta ke in the releva nt category ofpublic services. Sec ie!. at 1992-1993.
Th e S upre me Co urt 's Fourt ee nth Ame ndm e nt ana lys is in Lane diffe red substa ntiall y from the analysis applied by thi s Co urt in Aisbrook. T o be gi n wilh. Aisbrook he ld Ihal th e proper "sco pe of OUf Seclion 5 inquiry [i s] Till e II of the ADA" as a whole. 184 F.3d at 1006 n. ll . Th e Sup reme Co urt , in co ntrast, dec lin ed to "exami ne t he broad ran ge o f Till e lI 'sapp lica tion s a ll at once, a nd to trca lth at bread th as a III ark of th e law's inval idi ty." 124 S. CI. at 1992. In stead, th e COli rt CO IH.:lu d cd that tht: ollly lIut!stion bt:fo re it was "whether Congress had the pown und e r ~ 5 to e nfo rc e the co nstitutiona l right of access to the co ur ts." Id. Jt 19lJ3 .

- 16Even be yo nd th e sco pe of review . the S upreme Court's de cis io n in Lan e reje cted seve ral c ritica l aspects of th e anal ys is in A/shrook. For exam pl e. in
Aishrook. th is Court rev iewed th e requirements of Ti tle 11 only in re lation to th e Eq ual Prot ecti o n Cla use's pro hibi tio n agai nst irrational discrimination. Sec 184 F.3d at 1008- 10 09. Lane. however. made clear that Title II e nforces not only the Equal Pro tec tio n C lause bu t a lso a va ri ety of other constitutional ri ght s. 124 S. CI . at 1988. Simila rl y, AI.\'hrook held th at Co ngress lacked a s uff icie nt hislo ri ca l p redicate fo r the e nac tment of Ti tle J I's proph ylac tic measures. Sec 18 4 F.3 d at 1009 . Th e Sup rem e Co urt. on th e ot he r hand . held th at Congress id entified a "vo lume of evide nce de monstrating the nature and extent of uncons titutiona l di scrimin ati on against persons wit h disabil it ies in the provision of publi c se rvices." 124 S. C t. a t 199 1. makin g it "clea r beyond perad ve nture th at inad eq uat e prov ision o f public se rv ices and access to publi c faci lit ies wa :.; an appro priate subject for prophylac tic leg is lati on." id. at 1992. In reac hin g the co ntrary conclu sio n. Alsbro(JH. co nsi de red on ly ev id ence of disc ri mi nat io n by S ta te governme nts. Sec 184 F.3d at 1009 & n. 17. Lane. howeve r. specifica ll y rejec lCd that view as based o n "t he mistake n premise thai a va lid exe rcise of Co ngress' ~ 5 powe r must always be predicate d so le ly o n evide nce of co ns titutio nal violat ions by the Sla tes Ih e mse lvl':. ... 124 S. Ct. at 1991 n.16. This Cou n also declined to give deference to Co ngress's

-I 7find ing of pe rvasive d isc rim inatio n in public se rvices. see 184 F.3d at 1007- 1008.
but Lane rel ied prominently o n the very sa me fi nd in gs. sec 124 S. CI. at 1992. According ly. Al.'ihrook has been superced ed and thi s Court is co mpe ll ed to
fo ll ow the precede nt established by t he Sup reme Court in Lalle. See Hayes. 218 F.3 d at 853. V iewed in lig ht of L{ll/e. Titl e 11 is va li d Fourteenth A me ndm e nt legis lat io n as ap p lied to cases relating to in stitutionalizatio n.f' B. COl1srilllfiullall?ights Implicated
T il le II e n forces t he Equa l Protectio n Clause's "pro hibitio n on irra ti o na l d isa bi lity disc rimin atio n," as we ll as"a va riety of o th e r basic co nstit ut io nal gua ra ntee s, in fri nge me nts of w hic h a rc subj ect to mo re sea rch ing judicial review." Lall e. 124 S. C I. at 1988 . In t he co ntext of t his casc. T it le II acts to enfo rce t he Equa l Pro tec tio n C lau se ' s pro hi bitio n agai ns t arbi tra ry treatment ba sed on irrational
/'I The Court in Lall e did not exam in c the congrue nce and pro port iona lity of T it lc II as a who le because the Court found tha t t he SW HL te was val id Sec tion 5 leg is lat io n a s app l ied to t he c lass ofcases befo re it. Because Title [I is valid Sectio n 5 legislat ion in t he institutiona lizat io n co ntext , this COllrt need not co ns ider the vali d ity of T itle II as a whole. T he United S tates conti nues to m ain tai n. however. that Title II asa whole is valid Section 5 legis lation bccause it is cong ruent and p ro portio nal to Co ng ress's goa l of e liminating disc rimin ation on th e ba sis of disability in the provision of public serv ices an area thai th e Suprem e Court in Lalle determin ed is an ·'appropriale subj ect for prop hylac ti c legislation" under Secti on 5. 124 S. (' I. at 1992.

-18stereotypes o r hosti lity ,1 as well as the heighte ned constitut io nal pro tect ion applied to the " treat ment of d isa b led perso ns by slate age nc ies in a va riety o f sett ings , in cluding unjus tifi ed co mm itm ent. e.g .. Jackson v. Indian a. 406 U.S. 7 15 ( 1972) ; [andJ the abu se and neg lec t of pe rso ns committed to slate ment a l he a lth hospita ls. YOIfIl~herg v. Romeo , 457 U.S. 307 (1982)." fd. a l 1989 (pa rall el c itation s omitted). Sec a ls o 0 'Collnor v. DonaldwlI, 4 22 U.S. 563, 573·576 (1975) (uncons titu tional insti tuti onal iza tion) ; Thomas S. by Bl'Ooks v. Flaherty. 902 F.2 d 250 (4t h Cir.) (co nfin ement when a ppropria te community pla ce me nt ava il able), ccrt. denied , 49 8 U.S. 951 ( 1990); Clark v. Cohen. 794 F.2d 79 (3d C if.) (sa me). cen.de ni ed. 479 U.S. 962 (1986).
As was true of the rig ht to access to c ourt s at iss ue in Lalle, "ord inary cons idc ralions of cost and conve nience alo ne cannot justify" in s titut io naliza t ion dec isio n s o r the de nia l o f in stituti o nalized pe rso ns acco mmodati o ns necessa ry 10 ensure thei r basic rights. Lalle. 124 S. C I. at 1994 ; see e.g .. 0 'Col/ I/ or, 422 U.S. at
7 Eve n under rationnl ba s is scrutin y. " me re negmivc attitudes. o r fenr" alo ne ca nn ot justify di spnratc treatmcnt ofthosc w ith d isabilit ic s. Ull i versity uf A/a. v. Garrell. 53 1 U.S . 356, 367 (200 I). A. purported rational bas is fo r trea rm cn! of the d isabled wi ll al so t:1 il if thc S tat c docs not acco rd the same trcatme nt to other groups sim ilarly s ituated. id. at 366 11.4: City ofC/e/)lIme v. ('/"hl/me Living O r.. In c.. 473 U. S . 432. 447-4 50 (l985). ifi l is ba sed on "a nim osity" towa rds th e di sablcd. ROili er v. El'(lJIs. 5 17 U.S. 620. 634 ( 1996). or ifit s imp ly giv es effect to pri vate biases . Palmore v. Sidoti. 466 U.S. 429. 433 (19 84).

-19-
575-576: YVllllgbe rg . 4 57 U.S. at 324-325. Finally. a s desc rib ed below. the int egration man d a te of Tit le II a ss ists in th e p reve nti o n of co nstitutional v iolat io ns throughout the ra n ge of governm e nt se rvices. many ofwhich implicate fu nd a mental cons titu ti o na l ri gills. SceLal1e. 124 S. C r. at 1998. C. Historical Predicate
"W he th er Title II va lid ly en fo rces th ese co nst itution a l rig ht s is .. q uesti on that ' must be j udged with refe rence to th e histo ric al expe ri ence whic h it reflec ts.'" Lal/e. 124 S. CL at 1988. Accordin g ly, in Lalle. the COLIrt reviewed th e h istor ical ex peri e nce reflected in Titl e II and co nc lud ed that "Co ng ress e nacte d Title II agains t a backdrop o f pervasive unequal treatmen t in the admini strati o n of state se rvi ccs and pro gra ms. including systematic depri vat ions of fund amcnt al rig ht s." 124 S. Ct. a t 1989. The Co urt remarked on th e "s hee r vo lume of ev id e nce dcmo nstrating the nature and exte nt of unconstitutional d isc rimin a tion again st perso ns with di sabilities in the pro vis io n o f public se rvi ces." id. at 1991 . and conc lud ed th at it is "clear beyond pcradventure that in adequate provisio n of public se rvices and acecss to publi c fa cil ities was a n ap propri a te subjec t for prophy lactic legisbtio n," ibid.
J. La nc CUI/c.:/usive(y ESfOblishecl The Adell/HI'-'}' Of The Pl'edicale Fol' Tille II~' Applicafion Tv Discriminatioll III .~II Pllblic Service$
Althoug h Lane ult imately up he ld Title II as valid Fou rtecnth Amcn d ment leg islatio n o nl y as app li ed III access 10 cuurlS, its c0 n clll~iu n s rega rd ing the

-20-
h istorical predicate for Title [[ are not limited to that context. T he Supreme Court
did not begin irs "as-applied" ana lysis until it reached t he third step of th e Boerne
analysis addressing the Act's co ngrue nce and proportionality. See 124 S. CI. at
1992- 1993. At the seco nd stcp. the Court conside red th e reco rd supporti ng Title II
in all its applications and found th e record included not only "a patte rn of
un constitutiona l trea tm en t in the adm inistratio n of justice," it!. at 1990. but also
v iolations of co nstitutional rights in the context of voti ng, jury se rvice. the penal
system, public education. law enfo rceme nt, and in st itutionalization, id. at 1989.
Thai record, the COlirt concluded, supported prophylactic legis lat ion to add ress
di sc rimin ation in "public services" ge n erally. Id. at 1992.x
Thus, the adequacy of Till e II 's hi storical predieatc to support prophylactic
legi slat ion add ressi ng di sc rim inatio n in public services. in cludi ng institutional
services fo r people wi th di sabil ities. is no longer o pen 10 dIspute. See Miller v.
~ In describ ing th e adeC[uncy orthc historic:l1 predic:ltc, the Court also spoke in gene ral te rm s, I"Cmarkin g. for instance, on " the s heer volume of evidence demons trating the nature an d extent ofunconsti lutionnl di scri mination aga in st perso ns wit h d isabi lit ies in the provi sio n of public services." 124 S. Cr. at 1991 (emphasis added). In concluding that " the rccord ol"con stitutio nal VIola tion s in
t his case * * * fa r exceeds the record in Hihbs," id. at 1992, the Cou rt specifical ly
refelTed to the record of"exclusion of persons with disabilitics from the enjoyment of pllhlic servil:es." ibid. (cmphasis added), rathe r than to thc record of exclusio n from j udicial serv ices in panicular. Sec al so ihid. (relying o n cong ress ional findin g in 42 U.S.c. 1210 1(a)(3) and italicizing phrase "acccss to public se rvice s" rather than specific eX:lmples ofpLlhlic service s li sted in the fInding) .

-2 1King , 384 F.3d 1248, 1270- 12 72 (11th e ir. 2004). But eve n ifitwere. t here is an a mple hi storica l basi s fo r extending Titl e II to di sability di sc rimin atio n re latin g to insti tuti o n a lization.
2. /-/istorica/ Discrimill atioll Agaillst People With Disabilities Subject To I,lSI iIII' iOlla Ii::a, iOIl
Of part icu lar re levance to th is case, th e Sup reme Co un cxp ressly ac know lcdged <inti cited the well- doc ulll cntcd pa nc rn of un co ns titllti o na I treatmcnt o f and d isc riminati o n again st person s wit h disabi li ties in t he co ntcxt of institutionali zat io n. Sec Lall e, 124 S. C 1 at 19S9 ("'T he hi storical cx pe ri e nce thn t Title II ren CC IS is al so docullle nt ed in this Co urt' s cnscs. which Iw vc identifle d unco nsti tUliona l treatl11e ll t of di sabled perso ns by state age nc ies in a variety o f se ttings. including unju s tifi ed commitmc llt '" '" ... [a nd J t he abusc and neg lec t of perso ns eO llllll illed to state me ntal healt h hospita ls."') (citations o mitt ed); sec al so hi. at 1989 n.1 0 ('Th e und ispu ted fin din gs of bct in Pel/lI/lII!"s' S,ote School alld /losp ita l v. /-Ialdermal/, 45 1 U.S. I (19g I ). pro v ide ano th c r cxam pl e of such mi s treatme nt. Sec hi . at 7 (, Co ndition s at Pe nnhurst a rc not o nl y dangerous. wit h the resi dent s oft e n phy s ically abused o r drugged by staff lll embe rs, but a lso inadequat e fo r tile ' habilitat ion' urthe retarded ').") (parallel c itations omitte d).
Indeed. Co ng ress a nd the Supreme COli rt ha ve long adnowlcdgcd the Na ti o n' s " hi story of u n fai r and oftc n g rotes que mi st reatml'IlI" of pe rso ns w ith

-22disabilities. City oIClebume v. Clebllrne Livillg Clr.. fllc .. 473 U.S. 432. 454
(1985) (Stevens, J. , co nc urrin g); see also Ollllslead v. L.e.. 527 U.S. 581. 608
(1999) ( Ke nn ed y, J. , co ncurr in g) ("[0 Jf cou rse. persons wi th me nt al disabilities have been subjec t to hi stori c mi st reat m ent. indifference. and hosti lity."); Clebllrne, 473 U.S. at 446 (no tin g tha t " [d]oubtl ess. th ere havc been and the re w ill cont inu e to be instances ofdiscrirni nati o n aga in st th e retarded that are in fact inv idi ous"); Alexander v. Choate. 469 U.S. 287, 295 n.12 ( 1985) ("well-cataloged instance s o f invid iol! s diseri min ation aga in st the ha nil icapped do ex ist").
Fro m Ih e 1920s 10 th e 1960s. the e uge ni cs J110vem ent labeled pe rso ns with mental a nd physica l disabilities as "sub-hu man c reatu res" and "waste products" responsible for poverty a nd c rime. United States C ivil Ri ghts Com mi ssio n, AccumllJoda ting the Spectrum oj"flldividual II bilities 20 ( 1983 ) (SpeC/rlllll). A corne rsto ne of th a t moveme nt was fo rced institutionalization directed at separating individua ls w ith di sa bilities fi'orn the cOlll m un it y at la rge.') "A regimc of SlalCmandatcd seg regat ion" emerged in w h ich ';[m]assivc custodial inslitutions we re built to warehouse the retarded lor life; the aim was to halt rcproduct io n of til e
-/ Sec SpeClrtllll 19-20; see also Employees oj"Dep" (~j"Pllh. lIea/lh & Welfare v. /)eparllllellf of PI/h. Healrlt & JVeI(are. 4 11 U.S. 279, 284 n.2 (1973) (noting that "the institutionalizatio n of the insa ne became the standard rrocc d urc of the socie ty " and a "cult ofasylulll swept the country") (quoting D. Rothman. The Discovery oj" Iii I' ..1.'1'.1'/11111 130 (197 1)).

-23retarded a nd ' nea rly extinguish their racc ."· Cleb urn e. 473 U.S. at 462 (Mars hal l. 1..

concurr in g in the judgmen t in part),IO State stat ute s provi d ed fo r the involuntary

inst itutiona li zatio n of perso ns with me ntal disab iliti es and. freq uentl y. e pilepsy,ll

Some States al so req uired pu b lic o ffi c ial s a nd parent s, some times at ri sk of c ri mi nal

pro secuti o n, to report th e "feeble-minded " fo r insti tutio na lizatio n . Spectrllm 20,

wi'" 33-34: T. Coo k. The Americans

Disabilities Act: The lv{ol'c to !lIlegra tiulI, 64

T emp. L. Re v. 393. 402 (1991) . Add itionally, almost eve ry State acco mpa nied

insti tu ti ona li za tion with co mpul so ry stcri liziJ tion and pro hib itio ns of ma rria ge.

CleiJlIme. 47 3 U.S. at 462 -4 63 (Ma rshall , J.. co nc urrin g in the judgment in part) ; see

al so /lu ck v. Belf. 274 U.S. 200, 207 (1927) ( upholdin g compulsory steril iza tion law

"in o rd e r to preve nt oLirbei ng swa mped wit h in co mpe te nce."; " It is better for al l t he

wo rld , i f ins tead of waiti ng to execute dege nerate offs pr ing for c rime, or to let the m

starve lor t heir imbecilit y. soc iety ca n preve nt th ose who arc manifestl y unfit fr o m

10 Sec a lso 4 73 U.S. at 46 3 n.9 (noti ng T exns smlut e. enacted in 191 5 (an d repea led in I<>SS). with s taled pUIl,0 se o f insrit utionnl iz in g the ment ally rctarded to relieve soc ie ty of "'the henvy economic and moral losses a ris in g from the ex istence nt Inrgc of these un fo rtunatc persons" ).
11 Sec Spec /mlll 19; T. Cook. The American\' lVilh Disabilities Act: The Move to Illt egra tio". 64 T elll p. L. Rev . 393.400 ( 199 1): Note, Me nlill Disahility and tlte RighI f() VO le. RR Yale L.l. 164-t (1979).

-24-
continu ing their kind .•• * Three ge ne ra ti ons of imbeciles are e nough .").l~
In co nsi derin g th e ADA, Co ng ress also hea rd extensive test imo ny regardin g unconst itu tiona l treatmcnt and unj us tified ins titut ionalizatio n of person s with di sabilities in state fac ilities. See, e.g.. 2 S taffor th e Ii o use CO l11m . o n Edu c. and Labor, 1Dls t Co ng., 2d Scss ., Legislalive History (dPllh. L. No. JO/ -336: The II mericfll1.\' wilh Disahilities Act 1203 (CO I11I11 . Print 1990) (Leg. )-1iSL) ( Lelia Batte n) (state hospita ls arc " notori olls fo r using medi catio n fo r co nt ro lling th e behaviOr of c li e nt s and not for treatment a lon e. Sec lu sion rOOIll S and re st raint s arc used 10 pu ni sh cl ients."); id. a t 1262-1263 (E lea nor C. Blake) (d etai ling the ·' minima l. custodial, ne g lec tful, abusive" ca re receive d at stat e me nt al hosp iwl. and w ill fu l indiffere nce resulting in rape); Spec/ru m 32-35; sec a lso Ca li fo rnia AH'y Gen., COll/missioll 011 Disability: Final Repol"l 114 (Dec. 1989). In addit io n. Congress drew upon its prior ex perie nce invest igati ng in stit uti o nali zation in pa ss ing th e C ivil Ri ght s of In st itlltion ~lli zcd Pe rso ns Ac t of 1980, 4 2 U.S.C. 1997 e/ .w 'I .. the
Develop mc ntal Disa bilitics Act of 19S4. 42 U.S .C. 6000 et seq .. and the Protection
a nd Advocacy for Men tally III Ind ividuals Act of 1986. 42 U.S.C. 10801 e/ seq.
I~ Sec also 3 Stafrof th c /l ollse Co mill . o n Edu c. ~lIld Labor. 10lst Co ng .. 2e1 Scss., Legislmiw! !-lis /m y (~r Pub. L. No . 1() 1-336: TIte Am ericallS lI'i/It Disahililies AC/ 2 242 (Co mm . Print 1990) (James Ellis): M. Burgdorf & R . Burgd orf. A /lis/ory (~f UI/equal Treo/mell/, 15 San la Clara Lawye r 855. 887-888 (1975),

Moreove r, the Depart ment of Ju stice's Inv e stigations in th e 1980s u nd e r the
C ivil Ri g hts of Inst ituti o nali ze d Pe rso ns Act, 4 2 U.S.C. 1997 el seq .. furth c r
d oc u mcnted cg rcg io us and fl agron t d e nia ls of co nstitut io na l rig hts by state- run instituti o ns for indi vidua ls w ith d isab iliti cs. u Unco ns t it u tio na l uses of ph ysica l and
m edi ca l res tra ints we re cO llllll o n place in many inst it ut io ns. For exa m ple,
invest iga tions freque nt ly fou nd instit utions st rappi ng mc nta ll y rcta rd ed rcsiden ts 10 the ir be ds in fi ve-po in t restraints fo r th e co nv enie nce o f sta fLI.! O ne faci lit y fo rce d
mc nl a ll y re tard ed res id e nt s to inh a le ammo nia fu mes as p uni shm e nt fo r m isbe hav io r. 15 Res iden ts in ot he r fac il ities lac ked adeq ua te food. clothing and
13 In th e years imlll ediate ly precedi ng enaC lln e nl of th e A D A. the De pa rtme nt of Ju st ice fo u nd unc o nstitu tio na l treatm e nt of indi v id u<l ls wi th di sa bi liti es in stal e in stitu tions fo rth e me ntally retard ed or mc nt a lly ill in mo re tlwn 25 Sta tes. Th e results o f th ose in vestigations were n.'.Co rd ed in fi nd in gs le it e rs requi red by 42 U.S.C. 1997b(a). I.! See No t icc of Findi ngs Rega rd ing Los Lu nas lI ospi ta l a nd Tra in ing Sc hoo l 2 ( 1988); No tice of Find ings Rcgardi ng Fairview Tra ining Ce nt e r 4-5 (1 985) ( res id en ts frcqu e nt ly place d in p hys ical restrai nts and mcdica ted in lieu of bein g
give n train in g o r treat ment): Notice of Fin d ings Regarding Westboro State Hospit a l 7 ( 1986) (ge ri at ric pat ie n ts in psychiatric hos pit;]1 fn:q uc nt ly g iven se dat ing d mgs
"as pun ish ment fo r a nt isocial be havio r. for the co nvenie nce of staff. o r in liell o f t rca t me nI "). 15 Sec No ti ce of Findings Regard ing Los Lunas I-I osp iw l and Traini ng Sc hoo l 2
(ln~) .

-26-
sani tatio n .H' Many s tate facilities failed to prov id e ba sic safe ty to resi d e nt s. resu ltin g
in se ri o LIS phys ical injur ies, sex ual a ssaults, an d eve n death s,I7 Ot hers we re d e ni ed
minimally adeq uate medical care, lea d ing to se ri ous medical comp li cati o ns and
1(' Sec, e.g., Notice of Findings Re ga rdin g Hawa ii State Hospita l 2 -3 (1990) ( resi d en ts b c ked adeCJuate foo d , had to w rap th e m selve s in s heets fo r la ck of clothin g, and were served food prepared in a kitche n infested w ith coc kroaches); No t ice of Finding s Reg ardin g Westboro State Il osp ita l 3 (1 986) (inve s t iga ti o n fou nt! 1hal the "sm ell and s ig ht o f urin e a nd feces pe rva de no t o n ly lo ilcl arca s, bUI ward
floors and wa ll s as wel l * * *. Bathrooms a nd s howe rs we re filth y . Liv ing areas
arc in fested wit h vermin. Th e re arc co nsis te nt s ho rt ages of clea n bed s heets, (1ee e 10 1hs. towels, a nd und e nvea r. "); Not icc of Find ings Rega rdi ng Fai rview T rai ni ng Ce nt er 6. 9 (due to lack ofa d eq ual e staffi ng, ma n y res id e nt s suffe r from "t he u nh ealthy effects orpoor oral a nd othe r bodi ly hygie ne. We obse rved seve ral res id e nts who were lay in g o r sitt ing in their ow n urine o r soi le d dia pers o r clothe s." while 70% o f res id e n ts s uffe red from gu m di sease a nd 35% " had pi n worm in fectio n , a parasitc w h ic h is s p read by fccal a nd o ral m u tes in unclea n environ ments").
17 Notice of F indin gs Regardi ng Los Lu nas l1 0spital a nd Training Schoo l 3 ( 1988) (facil ity failed to provide minima ll y adeq uate supe rvision and safe lY. a nd as a resu lt " a woma n was raped , developed peritonitis a nd died"); Not ice of F ind in gs Rega rd ing Rosewoo d Cente r 4 (1984) (i nadequ ate su pervision of resi d e nt s co ntribut ed to rapes a nd sex ual assau lt s of seve ral reside nts; profou nd ly reta rd ed reside nt left un su pe rvi sed d row ned In bathtub ; anot he r d ied of expos ure after leaving th e facil ity unnotice d); Notice of Fi ndings Rega rdin g r airv iew Tra inin g Ce nt er 3 (1985) (Depa rt ment found " nu merous res id e nts wit h ope n wou nd s. gashes, abmsio ns. contusions and fres h bite marks" duc to lack of training for r.::s ici c ll G a nd lack of ad equate sup.::rvisio n by staff); Notice of Findin gs Rcgard ing No rth ville Regiona l Psyc hiatri c Center 2-3 (1984) (one resident died after sta ff placed h im in a st ran gleho ld and leli h im u nconscious on seclusio n mom Iloor fo r
15<?:0 III inutes be fo re m aki n g any \"~ffort to resuscitate him ); it!. at 3 ( seve ral other
residcnts fou nd d ead wit h severc bruising, m a ny o the r in cide nt s of " rape. assault. threat of assault. b roke n bone s and bru ises" foun d ).

-27 · fur th e r deaths.l ~
Thi s reco rd de mo nstrates that "Congress was j u stified in concluding that thi s
'd ifficult and intractable prob le[m]' warranted 'added prop hylacti c measures in
respo nse. ", Lane. 124 S. Ct. at 1993 (quoting Nevcu/a Dep', (?fJ-/umall Res. v .
ilib".\", 538 U.S. 721, 737 (2003)).
D. COlIgl'llcl1ce And Proportionality
" The on ly questio n th at re ma in s is w heth er Titl e II is an appropr iate response
to t hi s hi story and pattern of un eq ual treatme nt." Lalle, 124 S. Ct. at 1992. T o
answer that questio n, thi s Court mu st decide w he ther Titl e II is co ngru ent and
proportion ate legislat ion as app li ed to the c lass creases implica t ing the
COIl St itlitio na l ri g hts 0 f in s ti tut io na li zed pe rso ns .
As was true of access to co urts, th e "unequal treat me nt of di sabled pe rso ns"
in th e a rea of insti tut io ns " ha s a lo ng hi sto ry, and has persisted de spi te seve ml
IX See. e.g., Not ice of Findin gs Regarding Enid a n d Pauls Valley State Sc hoo ls 2 ( 1983) (inadequate medical ca re and monitoring contr ibuted to dea th s of six residents); Not ice of Findings Regard ing Mante no Me ntal Heal th Ce nte r 4 (1984) (investigat ion of state mental health faci li ty fou nd "w id espread occu rre nce of seve re drug side-effccts" that cou ld be ·'debilitating or life-t hreatenin g" gOing "unmentioned in patie nt records. unrecognized by staff. untre ated . o r inappropriately treated"); Notice of Find ings Rega rd ing Napa State l-I ospita l 2-3 (1986) ( bcility staff"v iolatcd all kn mvn stand ards of medical practice by presc ribing psychotropic medications in excessive ly large daily dose s" and by failing to monitor patie nts fo r seriolls. irreversible side effects).

-28legi s lativ e effo rt s." Lane. 124 S. Ct. at 1993: seeid. a t 1991; Olmstead. 527 U.S. at 600 (describing prior statutes). Thus, Congress faced a "difficult and intractable problc[ml." Lane, 124 S. Ct. at 1993. whic h it co ul d conc lud e would "rcqu ire power ful remedies ." ld. a t 1989.
No netheless. the re medy imposed by T itle 11 is "a li mited onc." Lalle. 124 S. C1. at 1993. Even though it requires States to take some affirmative steps to avoid di scrimination , it " does not require States to compro m ise their esse ntial elig ibility cr iter ia." req uires only "' rea so nab le mo d ificatio ns' that wo uld no t fu ndamentally alter the nanlre of the service provi d ed," ibid. , a nd docs no t require S tal es to "u nd ertake measure s that wou ld impo se a n undue financial o r admi ni strative
bu rde n * * * o r effect a fim dam e ntal altera tion in th e nmure of th e se rvice," id. at
1994. See also Olmstead, 527 U.S. at 603-606 (p lural ity). Title II 's ca rcfutty c irc um sc ri bed int egra t io n mandate is consistent wit h the
commands of the Co nstitut ion in this area. Co ng ress was wel l aware of the lo ng h istory ofstatc institutio na lizatio n de cisio ns being driven by insufticicnt o r illegitimate state purposes, irrat iona l ste reotypes, and eve n out right host il ity toward people with di sabilities. See Seuion II (C)(2), slIpra . T itl e II pro vides a p roportionate response to thai history, cong rue nt with th e requircmcllts of the Due Process and Equal Protecli o n Clauses. by requirin g the S tal e 10 treat people with

-29d isabilities in acco rd ance w ith the ir indiv id ual needs and capab ili ti es. Compare Olmstead, 527 U.S. at 602, with O'Connor, 422 U.S . al 575-576 (requiring ind iv iduali zed asse ss ment prior to involuntary comm itm ent) ; Parham v. J.R., 442
U.S. 584, 600, 606 -607 (1979 ) (sa m e fo r volu nta ry commitme nt ofa ch ild ): YOllngherg, 457 U.S. at 32 1-323 (requiring indivi du nli zcd co nsideration in co ntex t of co nditi o ns of co n finClllcnt w ithill i nst itu tion s).
Moreove T, g iven the hi sto ry 0 f uncon st itutional co I11pul so ry in stitut io nal ization , Co ng ress was e ntitl ed to conc lud e th at th e re ex ists a rea l ri sk that som e state offic ial s may continu e to mak e place me nt decision s based on hidde n in vidiou s cla ss -base d ste reo types or a nimu s that would be difrie ult 10 detect o r prove. See Hihhs , 538 U.S. at 732-733. 735-736. T itle II ap propr iate ly ba lances the need to protect aga in st that ri sk and th e State's legiti mat e interes ts. Olmstead general ly pe rmit s a State to limit se rvices to an in stitutional setti ng wh en the Sta te's trea ting professio na ls dete rm ine th at a rest ric t ive se ttin g is necessary fora n individual pat ient . o r w hen providi ng a co mmunit y p laceme nt would impose un warranted burdens o n the S tate's abil ity to "maintain a range of faci li ties and to admi n isrc r sc rviceswi th an eve n hand ." 527 U.S. a t 605 (pluralit y). But when a State pers is tently refu ses to follow th e advice 0 f its own professio nals and is un able to demon strat e that it s de cisio n isj ustifi l!d by suffi cie nt adminis trative or tl nancia l

co nside rations, the ri sk o f un co nstitut ional treatment is suffi cient to wa rrant Title II 's prophy la c ti c res po nse. Co mpare Hihhs. 538 U.S. at 736-737 (Con g ress Illay res pond to ri sk of "subtl e di sc rimina tio n th at may be di ffi c ult to dete ct on a caseby-case basis" by "c reatin g a n ac ross-t he-board. rout in e e mpl oy ment benefit for a ll e lig ib le employees").]')
Titl e II a lso se rv es broa de r remed ia l and pro ph ylactic purposes. The integratio n acco mp lished by Titl e II is a proper reme d y fo r th e co ntinu ing seg rega ti ve effects of the hi sto ri cal exc lu sion ofpeop le with di sabiliti es from the ir com mun it ies. sc hool s, and othe r gove m mc nt se rvice s . See Lalle. 124 S . C I. at 1989- 1990; United Slates v. Virginia. 5 18 U.S. 515, 547 ( 1996) (" A proper remedy
fo r a n un co nsti tution al exclus io n * * * aims to elimi nate so far as po ssibl e th e
di scriminatory effects of th e pas t a nd to ba r like di sc rimination in th e future.") (intern a l pu nctua tion om itted). It is a lso a reaso nabl e prop hy lax is aga in st the ri sk of fu ture un constitutional di sc rimination in gove rnm e nt se rvices. "[ I]nstitutiona l
]9 The int eg ration mandate is also a proportionate re sp on se to th e histo ry of widesp rea d ""abuse and n eglect of pe rso ns cO llllnittcd to sta te me nt al hea lth hosp itals." Lallc. 124 S. Ct. at 19R9. Co ng ress cou ld just ifiably respo nd to th is record of un co nstitutiona l treatment wit hin institutions by requirin g reaso nabl e steps 10 remove from sllc h sett in gs those w ho ca n be adequately treated in community setti ngs. Th e reaso nabl e modification and ol her T itle II requi reme nts furth e r cnsu re that Ih ose w ho re mai n in Sl<lIe e,lTe arc affo rd ed th e incllvidualized trealll1Cnllliat is often n ecess~lry 10 e nsure basic safelY an d hUlll <lne conditio ns.

-31placement of pe rso ns w ho ca n ha ndle and be nefi t fr o m com muni ty sett in gs perpetuates unwarra nted ass umption s th at perso ns so isolated are incapable or un wort hy of pa rticipa tin g in co mmunit y li fe." Olmstead, 527 U.S. at 60 0. Mu c h o f t he di scrim ination Co ngress docu m ented occurred in th e co ntext of indi vidu a l st at e officials ma kin g d isc ret ionary decisio ns dri ve n by j ust slIc h "fa lse presu mption s, ge neral izatio ns, mi spc rce ptions, patro nizi ng attitudcs, ig nora nce, irrational fca rs, a nd pernic ious myt holog ie s," H .R. Rep. No. 485,Pt. 2, IOlstCo ng., 2d Sess. 30 ( 1990). Co ngress cou ld reasonably expect tha t Title II 's integ rati on ma nd ate wo uld red uce th e ris k of un co ns titutional state actio n by ameliorat in g on e of it s root ca uses throug h " increasi ng social contac t a nd interact ion ofno nhand ieapped a nd handi capped peop le." Spectrum a t 43.
Thu s, t he integ ratiol1ma ndat e pla ys a n im porta nt ro le in Tit le II 's large r goa l of re liev in g th e isol ation a nd inv isibilit y o f people wit h d isabilities th at is both a legacy of pas t un co nstitutiona l trea tm ent and a co ntribut or to co ntinuin g den ials of bas ic co nsti tuti onal ri g hts. Accordingly, in the co nt ex t prese n ted by th is case, Titl e II "ca nn ot be sai d to be 'so out of proportion to a s upposed rem e d ia l or preventive object that it ca nn ot be understood as respo nsive to, or desig ned to prevent, un co nstitutiona l behavior.'" Lalle , 124 S. Ct. at 1994.

C ONC LUSION
The Stale '5 c hall enge to the co nst itu tion ality of Title II of the America ns wit h
D isab ilities Act shoul d be rejected .
Respec tfu lly subm itted.
R. A LEXANDE R ACOSTA As sistant Attor ney General
J ESS ICA DUNSA Y S ILVE R KEV IN RU SSE LL
At torneys
Depa rtme nt of Justice
C ivil R ights Di visio n - Appe llate Sectio n
Ben Frankl in Statio n P.O. Box 14403 Washi ngton, DC 20044-4403 Voice: (202) 305 -45R4 Fa cs imil e: (202) 5 14-8490

CER TI FICATE OF CO \ 'IPLI ANCE Pursuant to Fed. R. App. P. 32(a)(7)(C) and 8th Ci r. R. nA(e), the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7). I. Exclusive orthe exempted pOltio ns in Fed. R. App. P. 32(aX7)(B)(i ii). t he b rief conta in s 7.187 words. II. Th e bricfhas bee n prepared in proportio nal ly spaced typcfi.lcc usi ng Word Perfect 9.0 in Times New Roma n 14-point fOil I. III . The und ersig ned und e rstand s a m aterial m isrep rese ntation in complet in g this cert ifi cate. or ci rcumve nti o n of th e type-volume limits in Fed. R. J\pp. P. 32(a)(7), ma y result in th e Court's st rikin g the brief and impos in g sa nction s against the perso n sig nin g the bri ef.

Date: November 26.2004

KEV IN RUSSELL Attorney

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