1 The Honor able Cy nthia Holc omb H all, Uni ted State s Circuit Judge for t he Ninth Cir cuit, sitt ing by de signation. United States C ourt of A

ppeals FOR THE EIGHTH CIRCUIT

__________ Nos. 01- 1038, 01-111 4

__________ Linda R. Gibson; L arry

Douglas B rown *

* Appellant s, * * Appeal from the United States * District Court for the Eastern * District of Arkansas v. * * Arkansas Department of * Correction; Thomas Mars * * Appellee s. *

__________ Submi tted: June 1 3, 2001
Filed: Se ptemb er 12, 2001 (Corre cted 10/30/0 1)

__________ Before LOKEN, MORRIS SHEPPARD ARNOLD, and HALL, 1 Circuit J udges.

__________ HALL, Circuit Judge. This consolidate d appeal requires us to determine whether state officials c an be sued in th eir offi cial capa city f or injunc tive relief under Title I of the Am ericans with Disabilit ies Act ( “AD A”), 42 U.S. C. § 12101 e t seq. L inda Gibson works for the Arkansa s Depart

ment of Correctio n. She alleges that her employ er discriminated against her because of an

alleged di sability aris ing from an on-t he-job injury. Larry2

Brown suffere d back inj uries while wo r king for the Arkansa s State P olice. H e is suing his former em

ployer for failure to accomm

odate his alleged disability. Neither district court exa

mined the m erits of

either case, instead co ncluding tha t Congress did not intend for

such suits w

hen it cre ated the A

DA’s rem edial sche me. In light of the Supreme Court's recent de cision in Board of T rustees of the Unive rsity

of A lab ama
v. Garre tt , 121 S. C t. 955 (2001 ), we c onclude tha t the AD A's rem

edial sche me is not comprehensive and reverse.

I. In Ex parte Y oung , 209 U. S. 123, 1 55-56 (1908) , the Supr eme Court held

that when a state of

ficial a cts in violation of

the Constit

ution or fe deral law , he is ac ting ultra vires and

is no longer entitled to the Stat e’s immunity from suit. In effect, Ex parte Young create s a legal f iction: a st ate offi cial s to ps being a state official when he does something contrary to federal law . The Ex parte Youngdoctrine p ermi ts only prospectiv e injunctiv e relief ; no mon ey dam

age s are availab le. See Edelm an v. Jordan , 415 U.S. 651, 664, 667-68 (1974).

In Garret t , the S uprem e Court he ld that stat e em ployee s could not sue

their employers for m oney da mage s under theADA; t he states a

nd their ag encies are imm une to such su its unde r the Elevent h Amendment. See Garret t , 121 S. Ct. at 967- 68. But th e Court did

not hold the s ame for suits against indivi dual defe ndants i n their “official” state capacities

. In fact, even though it wa s not part of

the holding of the case, the Court i

ndicated t hat individuals could

sue stateofficia ls for inj unctive relief und er the ADA:

Our holding here

that C ongr ess did not validly a brogate the

States’ sovereign imm unity from suit by

private individuals for money damages underTitle I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the AD A still prescribes standards applicabl e to the States. Those standards can be enforc ed by the Uni ted Sta tes in act io ns for mo ney dam ages, as well as p rivate2 Appellee s also contend that a de cision to pe rmit Ex parte Young suits to enforce the ADA would cla sh with our

own prec edent in Alsbrook v. City o f Maum elle , 184 F.3 d 999, 1010 ( 8th Cir. 1 999) (en ba nc). In Alsbrook , we he ld that the A DA’s rem edial sche me prevents a pl aintiff f rom m aintaining a

§ 1983 action ag ainst sta te official s. But Alsbrook is not persu asive here. In Alsbrook , we did not address whether an action under Ex parte Young was avai lable bec ause the plain tiff’s claim for inju nctive rel ief was moot. See id. at 1003 n.5. Moreover, our decisi on in Alsbrook

predated the Supre me C ourt’s d ecision in Garret t

. 3 ind ividuals in actions for injunctive relief under Ex parte Young , 20 9 U.S. 123, 28 S. Ct. 441, 52 L. E d. 714 (19 08). I n additi on, state l aws protecting

the rights o f persons with disabili t ies in e mploy ment a nd other aspe cts of lif

e provide independent avenues of redress.
Id. at 968 n.9. The appellee s contend

that the above statement is mere dictum and this court should rule that suits under Ex parte Young are not available under the ADA. They argue tha t the state ment c onflicts w ith Suprem e Court precedent. 2 We disagree.
First, the Garret

t footnote is not contraryto S uprem e Court precedent. Plaintiffs seek only pro spective injunctiv e relief. The Sup reme Court rec ently explained that when the relief sought is prospective injunctive relief, the reque st “is ordinaril y sufficie nt to invoke the Young fiction.” Idaho v. C oeur d’ Alene Tribe , 521 U.S. 261, 281 (19 97). The Eleventh Amendment

is not a bar

to “f ederal j urisdiction
over a suit agai

nst a state

officia l when tha

t suit seeks only pr

ospective i

njuncti v e relief in order to ‘end a continuing violation of feder al law. ’” Semi nole Trib e of Florida v. Florida , 517 U.S. 44 (19 96).
Second, the main case reli ed on by the Sta te, Seminole T r ibe , dealt w ith a Congressional act m arkedly differentfrom the ADA : the Indian Gaming Regulatory Act (“IGRA ”). In Semi

nole Tribe , an Indian tribe sued the governor of Florida under IGRA. The Supreme Court held that Ex parte Y oung did not apply to the trib e’s suit4

against the governor be cause Cong ress did not

intend to au

thorize f ederal j urisdiction under Ex parte

Youngto enforce IGRA. See Semi nole Trib e , 517 U.S. at

75 n.17 & 76.

IGRAprovides that cer tain form s of gam

ing can be c onducted on I ndian lands only if the gaming com

plies with a co mpac t entered into by t he Indian t

ribe and th e State. See 25 U.S.C . § 2710(d) (1). U pon recei ving a reque st from the Indian

tribe to enter into such a c ompac t, “ the State shall negotiate wit

h the India

n tribe in go od faith to enter into such a compact.” 25 U.S.C. § 2710(d)(3)(A). IGRA authorizes the tribe to sue t he State in federa l district court if t

he State does not negot

iate, but the district court’ s rem edial auth ority is severe ly

limit ed. If t

he court de termines that th e State fa iled to neg otiate in go od faith, it can only “order the Sta

te and Indi an Tribe t o conclud e such a co mpac t within a 60-day period.” If the S tate still

fails to negotiate, the district court can only or der the appointm ent of a m ediator. Finally , if the media tor cannot bring the si des to an ag reem ent, IGRA requires the media tor to inform the Secretary of the Inter ior, who is empowered to authorize gam ing even in the absen ce of a compact. See 25 U.S.C. § 2710(d)(7)(B).

In holding that the Ex parte Young doctrinewas not avai lable to en force IGRA, the Supreme Court ex

plained: “[W ]here

Congress ha s prescri

bed a detailed remedial sch eme for the e nforcem ent against

a State o f a statut o ril y created right, a court should hesitate b efore ca sting aside those limitations and permitting an action aga

inst a state of ficer ba sed upon Ex parte Young .” Id. at 74. As evidence of this remedial sch eme that prevented the application of Ex parte Young , the Court cited

the st atut e’s limiting of the distr

ict court’ s rem edial auth ority to: 1) orderi ng the State

and the tri

be to negotiatea com

pact with in 60 days ; 2) if tha t fails, requiring

the parties t o submi t proposal s to a mediator. See id. The Court opined that allowing actions against an official under Ex parte

Young would gre atly e xpand the remedial powers available, allowing a district court to issue contempt sanctions against state officials that Congress did not i ntend to authorize

. See id. at 75. We have already comm ented that5

Semi nole Tribe holds the Ex parte Youn g doctrine inapplicable in IGRA cases because IGRA r

evealed a Congressio na l in tent to prescribe a limited remedial scheme. See Santee S ioux Tribe of Nebraska v. S tate of N ebraska , 121 F.3d 427, 432 (8th Cir. 1997).

Ther e are significa

nt differences bet

ween the ADA a nd IGRA that m ake use of the Ex parte

Young doctrine a

ppropriate

for one and not for

the other. First, there
are several enforcement m echanisms for Titles I and II of the A DA. The ADA

makes all the remedies of Title V II of the Civil Rights Actof 1964 appli cable to A DA Title I plaintif fs. See 1990 U.S.C.A.A.N. 445 , 472. This m eans that remedies such as equitableorders an d c ontem pt p roceedings are possible. Equitable relief such as injunctio ns are also available to enforc e ADA

rights. T hus, the A

DA stand s in stark contrast to the IGRA, w

hich only permits th e d istrict c ourt to order 60 day s of negotiation s and then call in a mediator. The S u prem e Court’ s concern that an Ex parte Young suit would permit a plaintiff to seek much stronger r emedies than those specifiedin IGRAitself do es not app ly to an ADA suit. See id. at 475 (stating that the “ful l panoply ” of rem edies are available

under the R

ehabilita tion Act a

nd therefore Title II).
Second, in drafting th e ADA , Con gress chose to use exist

ing civil ri ghts enforcement mechanis ms. See id. at 472; Pona v. C ecil W hittaker’ s, Inc. , 155 F.3 d 1034, 1038 (8th Cir . 1998) (“ Congress ha s provided [ Title II of the AD A] wi th detailedmea

ns of enfor

cementthat it im

ported fr om T itle VII

of the Civil Rights Act of 1964 . . . .”). C ongress knew that civil rights law s outlawin g discrim ination on the basis of race and gender had been enforce d through dist

rict cour t orders c ompel ling state officia ls to perfo rm th eir statutory obl igations. It only make s sense to infer that Cong ress inte nded for th e same orders to i ssue agai nst state officials i n the ADA context. The Sta

te argues that the A

DA requirem ent that ch arges of d iscrim ination first be filed w ith th e EEOC is evidenc e of a “ detailed” rem edial sche me m

eant to exclude use of Ex parte

Young

. But this requirement was borrowed from Title VII,6

so it hardly speaks to Congressional intent to create an exclusive system separ a te from the traditi onal scop e of judicial power.

Th ird, enf

orc ement of AD A pro vis ion s can nor mally b e acc ompl ish ed b y a single official. For exam

ple, in this case, the director of the Arkansas State Police can simply be instruc ted not to app ly a discriminatory policy . In contrast, IGRA involved complexnegotiation s with Indi an tribes. As the Co urt noted, a state of ficial c annot bind her state to a gaming com pact. Instead, a governor who negotia te d with an Indian tribe nee ds the state legi slature to vote to acc ept the com pact she negotiate d. See Semi nole Trib e , 517 U.S. at 75. Thus, the A DA is a more

suitable candidate than IGRAfor Ex parte

Young su its designed to c hange the behavior of s pecific government of

ficials.

Fin all y, it made som e sense for the Semi nole Trib e court to be

reluctan t to second guess Congress’s wishes in the com plicated f ield of negoti ations b etween two sovereigns

. The Court was apprehens ive about le tting distri ct courts s tructure their
own relief against state governors who refused to negotiate with an Indian tribe. In contrast, there is no reason t o think that C ongress intended to lim it the avai lability

of prospectiv e relief against states who continu ed to discr imina te against the

disabled. The ADA statute presumes enforcement through equitable orders issued by district courts th at target dis criminatory condu ct. See Utilla v. City o f Mem phis , 40 F. Supp.2d 968, 977 (W .D. T enn. 1999) (“ Congress ha s not cre ate d a r emed ial sch eme designed for the exclusive enforcement of Plaintiffs’ rights under the ADA o r Rehabilit ation

Act. Q uite to thecontrary , Congre ss authoriz ed suits like the prese nt
one as an appropriate m eans to vindicat e the right s granted u nder the A

DA and Rehabili tation Act .”).

Given these diff

erences and the una

mbiguou s language of the Garret t footnote,
we conclude that private individuals can sue state officials for injunctive relief under the ADA by using Ex parte

Young

.7

REVERSED.

A tru e co py.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.