[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-13595

________________________

D.C. Docket No. 0:12-cv-60460-WJZ

UNITED STATES OF AMERICA,

 Plaintiff-Appellants,

versus

STATE OF FLORIDA,

 Defendant-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(September 17, 2019)

Before JILL PRYOR, BRANCH, and BOGGS,

∗ Circuit Judges.

Table of Contents

ANALYSIS................................................................................................................5

I. An Overview of Title II of the ADA......................................................................5

II. The Remedial Structure of Title VI of the Civil Rights Act...............................12

A. Title VI Enforcement Regulations Contemplate Department of Justice 

Enforcement Suits................................................................................................14

∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by 

designation.

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B. Enforcing Title VI: Any Other Means Authorized By Law ...........................17

III. Section 505 of the Rehabilitation Act................................................................21

A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations.22

B. Department of Justice Enforcement of the Rehabilitation Act .......................27

IV. Enforcement of Title II of the ADA ..................................................................32

A. Title II Enforcement Regulations Follow Regulations Promulgated Under the

Rehabilitation Act and Title VI............................................................................33

B. Title II of the ADA Permits Department of Justice Enforcement ..................39

C. The Legislative History of Title II Supports the Attorney General’s Authority 

to File Suit............................................................................................................46

D. The Department of Justice Has Filed Suit to Enforce Title II........................51

E. Federalism Principles Do Not Alter Our Conclusion......................................54

CONCLUSION........................................................................................................58

BOGGS, Circuit Judge: 

In September 2012, after completing a six-month investigation, the 

Department of Justice issued a Letter of Findings notifying Florida that it was failing 

to meet its obligations under Title II of the Americans With Disabilities Act of 1990 

(“ADA”) and its implementing regulations, by “unnecessarily institutionalizing

hundreds of children with disabilities in nursing facilities.” The Department of 

Justice also asserted that Florida’s Medicaid policies and practices placed other 

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children who have “medically complex”1 conditions, or who are “medically 

fragile,”2 at risk of unnecessary institutionalization. 

The Department of Justice negotiated with Florida to attempt to resolve the 

violations identified in the Letter of Findings. After concluding that it could not 

obtain voluntary compliance, the Department of Justice filed suit in the Southern 

District of Florida in July 2013, seeking declaratory and injunctive relief under Title 

II of the ADA and 28 C.F.R. § 35.130(d).

In December 2013, pursuant to Fed. R. Civ. P. 42(a), the district court 

consolidated the Department of Justice’s suit with a previously-filed class-action 

complaint from a group of children who similarly alleged that Florida’s policies 

1 The Letter of Findings relied on Florida’s then-operative definition of “medically 

complex.” The term describes “a person [who] has chronic debilitating diseases or conditions of 

one (1) or more physiological or organ systems that generally make the person dependent upon 

twenty-four (24) hour-per-day medical, nursing, or health supervision or intervention.” Fla. 

Admin. Code R. 59G-1.010(164) (2012). Florida has since amended its Administrative Code, and 

this definition no longer appears. See Fla. Admin. Code R. 59G-1.010. 

2 At the time the Letter of Findings was issued, Florida defined “medically fragile” as a 

person who is: 

medically complex and whose medical condition is of such a nature 

that he is technologically dependent, requiring medical apparatus or 

procedures to sustain life, e.g., requires total parenteral nutrition 

(TPN), is ventilator dependent, or is dependent on a heightened level 

of medical supervision to sustain life, and without such services is 

likely to expire without warning. 

Fla. Admin. Code R. 59G-1.010(165) (2012). This definition no longer appears in Florida’s 

Administrative Code. See Fla. Admin. Code R. 59G-1.010. 

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caused, or put them at risk of, unnecessary institutionalization and unlawful 

segregation on the basis of disability. See A.R. v. Sec’y Fla. Agency for Health Care 

Admin., 769 F. App’x 718 (11th Cir. 2019). 

Shortly before the consolidation, Florida filed a Motion for Judgment on the 

Pleadings, asserting that Title II of the ADA did not authorize the Attorney General 

to file suit. The district court denied Florida’s motion, concluding that the 

Department of Justice had reasonably interpreted Title II and had the authority to 

file suit to enforce Title II. See A.R. v. Dudek, 31 F. Supp. 3d 1363, 1367 (S.D. Fla. 

2014). 

In 2016, the district court sua sponte revisited the issue3 and dismissed the 

Department of Justice’s case because it concluded that the Attorney General lacked 

standing to sue under Title II of the ADA. See C.V. v. Dudek, 209 F. Supp. 3d 1279, 

1282 (S.D. Fla. 2016). After further litigation, the district court dismissed the 

children’s case. This appeal followed. 

3 There do not appear to be any significant factual or legal changes between the 2014 

decision and the 2016 decision. The consolidated cases were reassigned in 2014, shortly after the 

district court decided Florida’s Motion for Judgment on the Pleadings. In 2016, the district court 

justified its departure from the 2014 decision because it concluded that the 2014 decision 

erroneously applied Chevron U.S.A. Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984),

and improperly deferred to the Department of Justice’s interpretation of the statute. See C.V. v. 

Dudek, 209 F. Supp. 3d 1279, 1291 n.11 (S.D. Fla. 2016). 

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ANALYSIS

This case requires us to determine whether the Attorney General has a cause 

of action to enforce Title II of the ADA. This is a purely legal question, requiring 

statutory interpretation. Therefore, the proper standard of review is de novo. 

Stansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 914 (11th Cir. 

2014). 

I. An Overview of Title II of the ADA

The ADA was intended to “provide a clear and comprehensive national 

mandate for the elimination of discrimination against individuals with disabilities,” 

and establish strong, enforceable standards to achieve that goal. 42 U.S.C. 

§ 12101(b)(1)–(2). Congress envisioned that, through the ADA, the Federal 

Government would take “a central role in enforcing the standards established in this 

chapter on behalf of individuals with disabilities,” and invoked “the sweep of 

congressional authority, including the power to enforce the [F]ourteenth 

[A]mendment and to regulate commerce” to “address the major areas of 

discrimination faced day-to-day by people with disabilities.” Id. (b)(3)–(4). See 

also United States v. Georgia, 546 U.S. 151, 154 (2006). 

Part A of Title II, 42 U.S.C. §§ 12131–12134, addresses public services 

provided by public entities. A “public entity” means “any State or local 

government,” or “any department, agency, special purpose district, or other 

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instrumentality of a State or States or local government . . . .” 42 U.S.C. 

§ 12131(1)(A)–(B). Title II prohibits discrimination based on disability, specifically, 

“[s]ubject to the provisions of this subchapter, no qualified individual with a 

disability shall, by reason of such disability, be excluded from participation in or be 

denied the benefits of the services, programs, or activities of a public entity, or be 

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term

“qualified individual with a disability” means: 

an individual with a disability who, with or without 

reasonable modifications to rules, policies, or practices, 

the removal of architectural, communication, or 

transportation barriers, or the provision of auxiliary aids 

and services, meets the essential eligibility requirements 

for the receipt of services or the participation in programs 

or activities provided by a public entity.

42 U.S.C. § 12131(2). 

Title II’s enforcement provision states that “[t]he remedies, procedures, and 

rights set forth in section 794a of Title 29 shall be the remedies, procedures, and 

rights this subchapter provides to any person alleging discrimination on the basis of 

disability in violation of section 12132 of this title.” 42 U.S.C. § 12133. Congress 

directed the Attorney General to “promulgate regulations in an accessible format 

that implement [Title II].” 42 U.S.C. § 12134(a). Such regulations, with the 

exception of specifically-identified terms, 

shall be consistent with this chapter and with the 

coordination regulations under part 41 of title 28, Code of 

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Federal Regulations (as promulgated by the Department of 

Health, Education, and Welfare on January 13, 1978), 

applicable to recipients of Federal financial assistance 

under section 794 of Title 29. 

Id. (b). 

It is undisputed that Title II permits a private cause of action for injunctive 

relief or money damages. Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 750 (2017). 

We must determine whether Title II’s enforcement scheme, 42 U.S.C. § 12133, 

permits the Attorney General to bring an enforcement action.

4 The starting point is 

the language of the statute. United States Dep’t of Transp. v. Paralyzed Veterans of 

Am., 477 U.S. 597, 604 (1986). If the words of the statute are unambiguous, then 

we may conclude the inquiry there. Connecticut Nat’l Bank v. Germain, 503 U.S. 

249, 254 (1992). 

Through a series of cross-references, the enforcement mechanism for Title II 

of the ADA is ultimately Title VI of the Civil Rights Act of 1964. See 42 U.S.C. 

§ 12133; 29 U.S.C. § 794a; 42 U.S.C. § 2000d-1. Section 12133 of Title II states 

4 Florida maintains that Supreme Court decisions examining Title II’s enforcement 

provisions that consistently mention private enforcement without considering public enforcement 

support a conclusion that Title II was never meant to permit public enforcement. But in each of 

those cases, the Supreme Court was confronted with questions stemming from private litigation 

(the United States intervened to defend abrogation of state sovereign immunity in two cases). See 

Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 751–52 (2017); United States v. Georgia, 546 U.S. 

151, 154–55 (2006); Tennessee v. Lane, 541 U.S. 509, 513 (2004); Barnes v. Gorman, 536 U.S. 

181, 183 (2002); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999). The Court was not 

required to consider whether the Attorney General could enforce Title II in those cases. We do 

not consider the Supreme Court’s silence on an issue that was not presented dispositive. 

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that the “remedies, procedures, and rights” available to a person alleging 

discrimination are those available in § 505 of the Rehabilitation Act of 1973, 

29 U.S.C. § 794a. Section 505 contains a provision for enforcing § 504 of the 

Rehabilitation Act, which prohibits discrimination on the basis of disability by 

programs and activities receiving federal financial assistance. See 29 U.S.C. 

§§ 794(a); 794a. In relevant part, § 505 states that: 

The remedies, procedures, and rights set forth in title VI 

of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)

(and in subsection (e)(3) of section 706 of such Act (42 

U.S.C. 2000e-5), applied to claims of discrimination in 

compensation) shall be available to any person aggrieved 

by any act or failure to act by any recipient of Federal 

assistance or Federal provider of such assistance under

section 794 of this title.

29 U.S.C. § 794a(a)(2). 

Like § 504 of the Rehabilitation Act, § 601 of Title VI of the Civil Act of 1964 

prohibits discrimination, exclusion, or denial of benefits—in that statutory scheme, 

on the basis of race, color, or national origin—by “any program or activity receiving 

federal financial assistance.” 42 U.S.C. § 2000d. 

Section 602 of Title VI requires the various federal departments and agencies 

that provide federal financial assistance to “effectuate” § 601 by “issuing rules, 

regulations, or orders of general applicability . . . .” 42 U.S.C. § 2000d-1. Agencies 

may “effect” “[c]ompliance with any requirement adopted pursuant to this 

section . . . (1) by the termination of or refusal to grant or to continue assistance 

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under such program or activity to any recipient . . . or (2) by any other means 

authorized by law . . . .” Ibid. Before any action may be taken, the department or 

agency must issue appropriate notice and determine that it cannot obtain voluntary 

compliance. Ibid. 

Florida insists that we need not consider the “remedies, procedures, and 

rights” available in § 505 of the Rehabilitation Act, or Title VI of the Civil Rights 

Act. It reasons that, because the Attorney General is not a “person alleging 

discrimination,” he is “not within the class to whom Title II provides enforcement 

authority,” and therefore is not authorized to bring suit to enforce Title II. To support 

this argument, Florida compares Titles I and III of the ADA, which expressly 

mention the Attorney General, with Title II, which does not.5

 

The United States contends that this interpretation (followed by the district 

court) “misreads the plain text of Title II.” It asserts that “Title II does not authorize 

the Attorney General to file enforcement suits by equating the Attorney General with 

a ‘person alleging discrimination.’” Rather, it contends that the phrase “remedies, 

procedures, and rights” in § 12133 is the operative phrase for statutory analysis. By 

5 The dissenting opinion focuses on the presumption against treating the government as a 

“person,” citing Return Mail, Inc. v. U.S. Postal Serv., 587 U.S. ____ (2019), No. 17-1594, 2019 

WL 2412904, at *5 (June 10, 2019). The Supreme Court’s holding in Return Mail should not 

change our analysis: in Return Mail, the underlying patent-review statute provided specific 

remedies for a specified offended party, thus differing significantly from the complex “remedies, 

procedures, and rights” structure of the ADA explained in detail in Part IV of our opinion.

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cross-referencing to other statutes, Congress made a “package” of remedies, rights, 

and procedures available that may include enforcement by the Attorney General. 

In enacting the ADA, Congress legislated in light of existing remedial statutes. 

See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590 & n.4 (1999); Shotz v. City 

of Plantation, Fla., 344 F.3d 1161, 1176–77 (11th Cir. 2003). This decision carries 

significant weight. When Congress adopts a new law that incorporates sections of a 

prior law, “Congress normally can be presumed to have had knowledge of the 

interpretation given to the incorporated law, at least insofar as it affects the new 

statute.” Lorillard v. Pons, 434 U.S. 575, 581 (1978). Because in Title II Congress 

expressly incorporated § 505 of the Rehabilitation Act, which in turn incorporated 

Title VI of the Civil Rights Act, as the available “remedies, procedures, and rights,”

it is “especially justified” to conclude that Congress was aware of prior 

interpretations, as well as the operation of, both Acts. See Cannon v. Univ. of Chi., 

441 U.S. 677, 696–98 (1979) (applying a similar presumption while using Title VI 

to interpret Title IX). Focusing solely on the word “person” and the difference in 

the language of enforcement provisions within the ADA ignores this presumption. 

Title II, the Rehabilitation Act, and Title VI are structured in a similar manner. 

Each has a statutory provision forbidding discrimination. Compare 42 U.S.C. 

§ 2000d, with 29 U.S.C. § 794(a), and 42 U.S.C. § 12132. Indeed, § 202 of Title II 

(42 U.S.C. § 12132) and § 504 of the Rehabilitation Act overlap substantially in their 

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prohibitions on discrimination on the basis of disability. See Barnes v. Gorman, 536 

U.S. 181, 184–85 (2002). Title II and the Rehabilitation Act share the same 

enforcement provision, which incorporates the entirety of Title VI. See 42 U.S.C. 

§ 12133; 29 U.S.C. § 794a(a)(2). 

It is true that, at first glance, Title II’s enforcement provision is not as specific 

as those in Titles I and III. But that difference should not dictate a conclusion that, 

absent greater specificity, we should simply assume that a single word in § 12133 

ends all inquiry. Because Congress chose to cross-reference other statutory 

provisions to identify how Title II may be enforced, we must consider those statutory 

provisions. Courts construing Title II and the Rehabilitation Act have taken the same 

approach. See Barnes, 536 U.S. at 185 (Title II); Olmstead, 527 U.S. at 590 n.4

(Title II); Alexander v. Choate, 469 U.S. 287, 293 n.7 (1985) (Rehabilitation Act);

Community Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983) (Rehabilitation 

Act); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012)

(Rehabilitation Act); Shotz, 344 F.3d at 1169–70 (Title II); United States v. Baylor 

Univ. Med. Ctr., 736 F.2d 1039, 1043–45 (5th Cir. 1984), cert. denied, 469 U.S. 

1189 (1985) (Rehabilitation Act). 

We begin in Part II by discussing the remedial provisions of Title VI of the 

Civil Rights Act, as it is the earliest-enacted statute and ultimate fount of the cascade 

of cross-references. We also examine the regulations promulgated with Title VI and 

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litigation that considered whether the United States could file suit to enforce Title 

VI. Next, in Part III, we analyze § 505 of the Rehabilitation Act, its accompanying 

regulations, and cases in which the United States brought suit to enforce the 

Rehabilitation Act. In Part IV, we return to Title II of the ADA and examine the 

regulations the Attorney General promulgated pursuant to Congress’s directive in 

42 U.S.C. § 12134, and the district court’s conclusions about the scope of Title II 

enforcement. We analyze Title II’s legislative history, and other cases in which 

federal courts have concluded that the Attorney General may file suit to enforce Title 

II. 

II. The Remedial Structure of Title VI of the Civil Rights Act

Title VI contains two enforcement mechanisms. See Alexander v. Sandoval, 

532 U.S. 275, 280–81, 288–89 (2001); Arthur R. Block, Enforcement of Title VI 

Compliance Agreements by Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev. 

1, 9–10 (1983). First, § 601 contains an implied private cause of action. See 

Sandoval, 532 U.S. at 279–80. The second enforcement mechanism is in § 602, 

which, as discussed above, directs federal agencies to “effectuate” § 601’s 

prohibition on discrimination by programs that receive federal funding through 

regulation, fund termination, and “any other means authorized by law.”6

 See id. at 

6 The regulatory powers attached to § 602 are substantial by contrast with other grants of 

regulatory power elsewhere in the Civil Rights Act. In Title VII, for example, Congress specified 

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289. Regulations promulgated pursuant to § 602 do not create a private right of 

action.7

 Id. at 289. Agencies enforce § 601’s prohibition on discrimination “either 

by terminating funding to the ‘particular program, or part therof,’ that has violated 

the regulation or ‘by any other means authorized by law[.]” Ibid. (quoting 42 U.S.C. 

§ 2000d-1). This system, developed in the 1960s, was well-established at the time 

the ADA and the Rehabilitation Act were enacted. See Block, supra, 9–10. 

that the EEOC could create “procedural” regulations to carry out the Title, rather than Congress’s 

more substantive grant of authority in Title VI to implement § 601. See Olatunde C.A. Johnson, 

Lawyering That Has No Name: Title VI and the Meaning of Private Enforcement, 66 Stan. L. Rev. 

1293, 1298 (2014) (citing 42 U.S.C. § 2000e-12). 

7 In Alexander v. Sandoval, 532 U.S. 275, 279 (2001), the Supreme Court considered 

whether a private cause of action existed to enforce Department of Justice regulations promulgated 

under § 602. Sandoval had filed suit, alleging that Alabama’s policy of administering driver’s 

license examinations only in English violated a Department of Justice regulation that forbade 

recipients of funding from using methods of administration that had the effect of discriminating 

on the basis of race, color, or national origin. Id. at 278–79. Florida points to Sandoval for the 

proposition that expressly providing one method of enforcing a substantive rule suggests that 

Congress intended to preclude others. The Supreme Court made this statement in Sandoval as it 

concluded that private individuals may not sue to enforce agency regulations promulgated under 

§ 602 because that statute did not contemplate a private right of action—rather, it directed 

authority to agencies. Id. at 289. Sandoval instructs us that we must look to the statutory language 

of particular provisions to assess the method of enforcement Congress has provided. Further, as 

the Supreme Court explained in Cannon v. Univ. of Chi., 441 U.S. 677, 711 (1979), when it 

concluded that Title IX implied a private right of action, the fact that other provisions of a 

“complex statutory scheme create express remedies” is not a sufficient reason to conclude that 

separate sections do not contain other remedies. The Court “has generally avoided this type of 

‘excursion into extrapolation of legislative intent,’ unless there is other, more convincing evidence 

that Congress meant to exclude the remedy.” Ibid. (quoting Cort v. Ash, 422 U.S. 66, 83 n.14 

(1975)). 

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A. Title VI Enforcement Regulations Contemplate Department of Justice

Enforcement Suits

It is helpful to survey the Department of Justice’s regulations addressing Title 

VI enforcement, particularly because Congress, in § 602, specifically directed the 

Department of Justice (and other agencies) to make those regulations. When the 

“empowering provision” of a statute directs the agency to regulate as necessary to 

carry out what Congress intends, “the validity of a regulation promulgated 

thereunder will be sustained so long as it is ‘reasonably related to the purposes of 

the enabling legislation.’” Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 

369 (1973) (quoting Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 280–

81 (1969)); see also Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) 

(deferring to “contemporaneous regulations issued by the agency responsible for 

implementing a congressional enactment”). 

Individuals who believe that they have been subjected to discrimination in 

violation of Title VI may file a written complaint. See 28 C.F.R. § 42.107(b). Upon 

receipt of a complaint, the Department is required to “make a prompt investigation,” 

to determine whether a recipient of federal funding has failed to comply with the 

antidiscrimination requirements. Id. (c).8

 If that investigation demonstrates that the 

8 Agencies are also required to conduct periodic compliance reviews to ensure that federalfunding recipients are complying with their obligations. 28 C.F.R. § 42.107(a). A compliance 

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recipient is not in compliance, then the Department must notify the recipient and 

attempt to resolve the matter by “informal means” if possible. Id. (d)(1). 

If the Department and recipient are unable to resolve the matter, then further 

action may be taken to induce compliance. Ibid. Such actions may include 

suspending, terminating, refusing to grant or continue federal financial assistance, 

or “any other means authorized by law[.]” 28 C.F.R. § 42.108(a). The Department 

of Justice has characterized those other means as including, but not limited to

“[a]ppropriate proceedings brought by the Department to enforce any rights of the 

United States under any law of the United States (including other titles of the Act), 

or any assurance or other contractual undertaking,” or “[a]ny applicable proceeding 

under State or local law.” Id. (a)(1)–(2). The Department may not take such actions 

until it has determined that it cannot secure voluntary compliance, the Attorney 

General has approved the action, and the non-complying party has been notified of 

its failure to comply and the action to be taken. Id. (d). 

Terminating or refusing to provide federal funding is the “ultimate 

sanction[.]” 28 C.F.R. § 50.3. To avoid such a drastic step, the Department’s 

guidelines urge agencies to take alternatives to achieve “prompt and full compliance 

review that indicates that there may be discrimination or noncompliance with agency regulations 

may also trigger an investigation. Id. (c). 

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so that needed Federal assistance may commence or continue.” Ibid. Such 

alternatives include administrative action or court enforcement.

Compliance with the nondiscrimination mandate of title 

VI may often be obtained more promptly by appropriate 

court action than by hearings and termination of 

assistance. Possibilities of judicial enforcement include 

(1) a suit to obtain specific enforcement of assurances, 

covenants running with federally provided property, 

statements or compliance or desegregation plans filed 

pursuant to agency regulations, (2) a suit to enforce 

compliance with the other titles of the 1964 Act, other 

Civil Rights Acts, or constitutional or statutory provisions 

requiring nondiscrimination, and (3) initiation of, or 

intervention or other participation in, a suit for other relief 

designed to secure compliance. 

Ibid. 

Florida argues that Title VI (and § 505 of the Rehabilitation Act, which we 

discuss infra in Part III, pp. 23–33) do not authorize federal enforcement actions, 

and never have. It maintains that the cases the United States relies upon are limited 

to “specific performance of contractual assurances of compliance obtained from 

recipients of federal funds.” 

It is hardly surprising that many Title VI cases are actions to ensure 

compliance by recipients of federal funding. Title VI was intended to ensure that 

“funds of the United States are not used to support racial discrimination.” 110 Cong. 

Rec. 6544 (1964) (statement of Sen. Humphrey). One of the easiest methods of 

achieving this goal was to require all recipients or seekers of federal financial 

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assistance to execute assurances that they would not discriminate. Such assurances 

stated that the United States could enforce those agreements in court. See 28 C.F.R. 

§ 42.105(a)(1). 

B. Enforcing Title VI: Any Other Means Authorized By Law

Even though government Title VI enforcement actions may be brought to 

ensure a funding recipient’s assurances of nondiscrimination, Title VI does not limit 

“other means authorized by law” solely to such enforcement. United States v. 

Marion Cty. Sch. Dist., 625 F.2d 607 (5th Cir. 1980), cert. denied, 451 U.S. 910 

(1981), illustrates this principle. There, the Fifth Circuit determined that the United 

States had authority to sue to enforce a school district’s contractual assurance to 

comply with Title VI’s prohibition against discrimination. Id. at 617. The court 

observed that the government’s complaint described the suit as one to compel 

specific performance and enforce Title VI and the Fourteenth Amendment. Id. at 

609 n.3. The district court had dismissed the complaint because it concluded that, 

by establishing alternative means to achieve federal antidiscrimination objectives, 

Congress nullified the United States’s existing right to sue to enforce contracts. Id.

at 611–12. 

The court rejected this reasoning, concluding that the Civil Rights Act did not 

limit enforcement strategies to only those means set out explicitly in the Act. The 

government has a right to “sue to enforce its contracts . . . as a matter of federal 

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common law without the necessity of a statute.” Id. at 611. Congress may, by 

statute, remove that right, but only if it offers “extremely, even unmistakably clear” 

evidence of such intent. Ibid. (citing United States v. United Mine Workers, 330 

U.S. 258, 272 (1947)). 

The language in § 602 supported this conclusion. It “clearly provide[d] that 

other means of action, even if not mentioned in the Act, are to be preserved.” Id. at 

612. The phrase “any other means authorized by law” showed that Congress 

intended to preserve other methods of enforcement—including filing suit. Id. at 

612–13. The Civil Rights Act contained a provision that explicitly preserved the 

existing authority of the Attorney General, the United States, or any agency, to bring, 

or intervene in, any action or proceeding. Id. at 612 (citing 42 U.S.C. § 2000h-3). 

The Fifth Circuit only considered whether § 602 permitted contract 

enforcement actions. The United States’ response to the school district’s motion to 

dismiss had asserted that the Title VI and Fourteenth Amendment claims were not 

brought as independent causes of action, but subsidiary to the contract claims. Id. at 

609 n.3.9

 Because the Fifth Circuit resolved the case on the contractual question, it 

9 This is not necessarily the winning point Florida thinks it is. The United States’s authority 

to bring contractual actions is, as the Fifth Circuit pointed out in United States v. Marion Cty. Sch. 

Dist., 625 F.2d 607, 611 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981), clearly established. 

The decision to emphasize the contract action may have been a strategic litigation decision, or it 

may have been made for any of a number of reasons. Regardless, we decline to accord substantial 

weight to an assertion made in a brief in a different case over thirty years ago. 

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did not consider whether the United States had an “implied right of action under 

Title VI,” or the “inherent authority to sue to enforce the Fourteenth Amendment.” 

Id. at 616–17. 

Akin to Marion County, in United States v. Alabama, 828 F.2d 1532, 1547 

(11th Cir. 1987), cert. denied, 487 U.S. 1210 (1988), superseded by statute on other 

grounds by J.W. v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018), we 

acknowledged that Title VI’s status as spending-power legislation, and the presence 

of federal funding was sufficient to permit the United States to file suit to enforce 

Title VI’s antidiscrimination provisions. A review of the history of Title VI 

demonstrates that the United States has consistently used such litigation to enforce 

its provisions.10 

Other cases that have considered § 602’s administrative-enforcement scheme 

have recognized the Attorney General’s right to bring legal actions as an avenue of 

enforcing Title VI without specifying that only contract actions are permissible. In 

10 See, e.g., United States v. Fordice, 505 U.S. 717, 724 (1992); United States v. Harris 

Methodist Forth Worth, 970 F.2d 94, 96 (5th Cir. 1992); United States v. Lovett, 416 F.2d 386, 

390 n.4, 391 n.5 (8th Cir. 1969); United States v. Louisiana, 692 F. Supp. 642, 649–50 (E.D. La. 

1988), vacated on other grounds by 715 F. Supp. 606 (E.D. La. 1990); United States v. Yonkers 

Bd. of Educ., 518 F. Supp. 191, 201 (S.D.N.Y. 1981); United States v. El Camino Cmty. Coll. Dist., 

454 F. Supp. 825, 826–27 (C.D. Cal. 1978), aff’d, 600 F.2d 1258 (9th Cir. 1979); United States v. 

Texas, 321 F. Supp. 1043, 1057–58 & n.18 (E.D. Tex. 1970), supplemented by 330 F. Supp. 235 

(E.D. Tex. 1971), aff’d by 447 F.2d 441 (5th Cir. 1971); United States v. Tatum Indep. Sch. Dist., 

306 F. Supp. 285, 288 (E.D. Tex. 1969); United States by Clark v. Frazer, 297 F. Supp. 319, 323 

(M.D. Ala. 1968). 

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National Black Police Ass’n v. Velde, 712 F.2d 569, 572 (D.C. Cir. 1983), cert. 

denied, 466 U.S. 963 (1984), the court considered whether agency officials’ failure 

to terminate federal funding to discriminatory local law enforcement violated their 

statutorily-imposed duties. In concluding that terminating federal funding was 

discretionary, the court relied on Title VI’s construction to permit other enforcement 

schemes, including “referral of cases to the Attorney General, who may bring an 

action against the recipient.” Id. at 575. See also United States v. Maricopa Cty., 

151 F. Supp. 3d 998, 1018–19 (D. Ariz. 2015), aff’d 889 F.3d 648 (9th Cir. 2018);

United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285, 288 (E.D. Tex. 1969); 

United States v. Frazer, 297 F. Supp. 319, 323 (M.D. Ala. 1968). 

The phrase “any other means authorized by law” in § 602 appears to be 

routinely interpreted to permit suit by the Department of Justice. See United States 

v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984), cert. denied, 469 

U.S. 1189 (1985) (phrase refers to federal enforcement); Brown v. Califano, 627 

F.2d 1221, 1224 & n.10, 1227, 1233 & n.73 (D.C. Cir. 1980) (discussing referrals 

to the Department of Justice); Maricopa Cty., 151 F. Supp. 3d at 1018–19; Adams v. 

Richardson, 351 F. Supp. 636, 641 (D.D.C. 1972). 

A similar phrase in another statute has received a comparable interpretation. 

In United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir. 2002), the Sixth Circuit 

considered whether the phrase “any other action authorized by law with respect to 

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the recipient” in the Family Educational Rights and Privacy Act (“FERPA”) 

conferred standing upon the Department of Education to seek injunctive relief. The 

court observed that, while FERPA contained a general authorization to permit the 

Secretary of Education to “take appropriate actions to enforce” FERPA, that alone 

was insufficient to permit enforcement litigation. Ibid. (citing 20 U.S.C. § 1232g(f)). 

However, another provision in FERPA offered the Secretary a menu of options in 

response to noncompliance with FERPA, including “any other action authorized by 

law with respect to the recipient.” Id. at 807–08 (citing 20 U.S.C. § 1234c(a)(4)). 

The court concluded that this language “expressly” permitted the Secretary to sue to 

enforce FERPA “in lieu of its administrative remedies.” Id. at 808. In reaching this 

conclusion, the Sixth Circuit relied on Baylor Univ. Med. Ctr., 736 F.2d at 1050, 

which had interpreted the Rehabilitation Act (encompassing § 602), and National 

Black Police Ass’n, 712 F.2d at 575, which discussed § 602. 

A review of the statute, the regulations that Congress expressly directed the 

agencies to create, and precedent demonstrates that Title VI contains an 

administrative enforcement scheme and permits judicial enforcement of its 

prohibition against discrimination. We next turn to the Rehabilitation Act. 

III. Section 505 of the Rehabilitation Act

The Rehabilitation Act established a “comprehensive federal program” that 

Congress intended to benefit individuals with disabilities. Consolidated Rail Corp. 

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v. Darrone, 465 U.S. 624, 626 (1984). It was originally enacted without an 

enforcement provision. See Community Television of S. Cal. v. Gottfried, 459 U.S. 

498, 509 (1983). Because § 504 was “patterned after Title VI of the Civil Rights

Act of 1964, it was understood that responsibility for enforcing it . . . would lie with 

those agencies administering the federal financial assistance programs.” Ibid. 

(citing S. Rep. No. 93-1297, at 39–40 (1974)).11 

A. Rehabilitation Act Enforcement Regulations Tracked Title VI 

Regulations

The Department of Health, Education, and Welfare (“HEW”) developed 

implementing regulations for § 504, and its Secretary was assigned to coordinate 

enforcement across federal departments and agencies. See S. Rep. No. 93-1297, at 

40 (1974); Exec. Order No. 11,914, 41 Fed. Reg. 17,871 (Apr. 28, 1976), revoked 

by Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980). HEW’s 1977 

regulations incorporated by reference its procedures under Title VI of the Civil 

Rights Act on an interim basis. See Nondiscrimination on the Basis of Handicap in 

Programs and Activities Receiving or Benefitting From Federal Financial 

11 Congress amended the Rehabilitation Act in 1974. Legislative history from that 

amendment reveals that Congress intended § 504 to lead to “implementation of a compliance 

program” similar to Title VI, including regulations, investigation, review, attempts to ensure 

voluntary compliance, and sanctions such as termination of federal funds, or “other means 

otherwise authorized by law.” S. Rep. No. 93-1297, at 39-40 (1974). This legislative history is 

especially relevant in light of the 1978 Amendments to the Rehabilitation Act. See infra pp. 25–

27. 

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Assistance, 42 Fed. Reg. 22685 (May 4, 1977) (adopting 45 C.F.R. § 80.6–80.10 

and Part 81 of Title 45 of the C.F.R. which specify “[T]itle VI complaint and 

enforcement procedures” to implement § 504). 

HEW’s Title VI procedures were identical to those adopted by the Department 

of Justice to implement Title VI, discussed supra at Part II.A, pp. 14–17.

12 They 

permit individuals to file complaints, 45 C.F.R. § 80.7(b), which require an 

investigation. Id. (c). Agencies must attempt to resolve the matter by “informal 

means.” Id. (d). Like the Department of Justice’s regulations, they identify other 

actions that may be taken against noncompliant funding recipients: termination of 

funding and referral to the Department of Justice for enforcement proceedings. 

Compare 45 C.F.R. § 80.8(a), with 28 C.F.R. § 42.108(a). 

In January 1978, HEW issued coordination regulations for the Rehabilitation 

Act. See Implementation of Executive Order 11,914: Nondiscrimination on the 

Basis of Handicap in Federally Assisted Programs, 43 Fed. Reg. 2132 (Jan. 13, 

1978). Executive Order 11,914 had directed HEW’s Secretary to coordinate 

implementation of § 504. Exec. Order 11,914, 41 Fed. Reg. 17,871 (Apr. 28, 1976); 

12 In 1979, the Department of Education Organization Act divided HEW into the 

Department of Education and the Department of Health and Human Services (“HHS”). See 

National Wrestling Coaches Ass’n v. U.S. Dep’t of Educ., 263 F. Supp. 2d 82, 91 (D.D.C. 2003). 

HEW’s regulations promulgating § 504 of the Rehabilitation Act remain in HHS’s regulations. 

See 45 C.F.R. §§ 80.7–80.8. 

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Consolidated Rail Corp., 465 U.S. at 634. The 1978 regulations directed agencies 

to establish a system to enforce § 504, which was to include “[t]he enforcement and

hearing procedures that the agency has adopted for the enforcement of [T]itle VI of 

the Civil Rights Act of 1964 . . . .” 43 Fed. Reg. 2137, § 85.5(a). 

In November 1978, Congress amended the Rehabilitation Act. There are two 

aspects to this amendment that are significant for the purposes of this case. First, 

Congress amended § 504. It directed that agencies “shall promulgate such 

regulations as may be necessary” to carry out the 1978 amendments. See Pub. L. 

95-602, Title I, § 119, codified at 29 U.S.C. § 794(a). The agencies were required 

to submit copies of any proposed regulation to “appropriate authorizing committees 

of the Congress . . . .” Ibid. 

Second, Congress enacted § 505, which established the enforcement 

procedures for violations of the Rehabilitation Act, including § 504. See Pub. L. 95-

602, Title I, § 120, codified at 29 U.S.C. § 794a. As we have discussed, § 505 

adopted the “remedies, procedures, and rights” set out in Title VI, and specified that 

those remedies “shall be available to any person aggrieved by any act or failure to 

act by any recipient of Federal assistance or Federal provider of such assistance 

under section 794 of this title.” 29 U.S.C. § 794a(a)(2). 

In Consolidated Rail Corp., the Supreme Court observed that the effect of 

these amendments was to “incorporate the substance of the Department’s regulations 

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into the statute.” 465 U.S. at 634 n.15. Legislative history demonstrates that 

Congress intended § 505(a)(2) to codify HEW’s regulations for § 504 enforcement. 

Id. at 635. Specifically, the “regulations promulgated by the Department of Health, 

Education, and Welfare with respect to procedures, remedies, and rights under 

section 504 conform with those promulgated under Title VI. Thus, this amendment 

codifies existing practice as a specific statutory requirement.”13 S. Rep. No. 95-890, 

at 19 (1978); Consolidated Rail Corp., 465 U.S. at 635 n.16 (“[T]hese Department 

regulations incorporated Title VI regulations governing ‘complaint and enforcement 

procedures . . . .’”); see also School Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 

279 (1987); United States v. Bd. of Trustees for Univ. of Ala., 908 F.2d 740, 746–47 

(11th Cir. 1990); Miener v. Missouri, 673 F.2d 969, 978 (8th Cir. 1982). 

In 1980, President Carter issued an Executive Order assigning responsibility 

for coordinating the implementation and enforcement of Title VI, the Rehabilitation 

13 Florida points to language in legislative history from the 1974 Amendments that it asserts 

showed that Congress only intended to create a private right of action. It is true that Congress 

stated that it intended to “permit a judicial remedy through a private right of action.” S. Rep. 93-

1297, at 40 (1974). But this portion of the report also discusses Congress’s vision of a “compliance 

program” similar to Title VI enforcement. Ibid.; see also supra, note 11 (discussing the 1974 

Amendments’ legislative history). Congress’s decision in 1978 to codify existing regulations that 

specifically required agencies to use Title VI’s administrative enforcement procedures undercuts 

Florida’s contentions. Congress’s decision, in 1978, to mention a private remedy is not surprising, 

given the litigation over whether Title VI implied a private right of action. See Sandoval, 532 U.S. 

at 280; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Guardians Ass’n v. Civil Serv. 

Comm’n of City of N.Y., 463 U.S. 582, 587 (1983). 

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Act, and Title IX of the 1972 Education Amendments14 to the Attorney General. See 

Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980), reprinted in 42 U.S.C. 

§ 2000d-1, app. Executive Order 12,250 directs the Attorney General to review the 

existing rules and regulations to determine their adequacy and consistency, as well 

as “develop standards and procedures for taking enforcement actions and for 

conducting investigations and compliance reviews.” Ibid. Executive Order 12,250 

revoked Executive Order No. 11,914. Id. at 72997. The Executive Order also 

preserved the coordinating regulations HEW had promulgated, which by then fell 

under the auspices of the newly-formed Department of Health and Human Services

“HHS”). 

The present regulations of the Secretary of Health and 

Human Services relating to the coordination of the 

implementation of Section 504 of the Rehabilitation Act 

of 1973, as amended, shall be deemed to have been issued 

by the Attorney General pursuant [to] this Order and shall 

continue in effect until revoked or modified by the 

Attorney General.

Ibid. The Department of Justice’s regulations for enforcement of § 504 are the same 

as those HEW promulgated in 1978. Compare 28 C.F.R. § 41.5, with 43 Fed. Reg. 

2137, § 85.5(a). 

14 Title IX was also modeled after Title VI. See Cannon, 441 U.S. at 694. Section 902 of 

Title IX is substantially similar to § 602 of Title VI. Compare 20 U.S.C. § 1682, with 42 U.S.C. 

§ 2000d-1. 

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As tedious as this administrative and regulatory history may be, it is essential 

to understand what Congress did when it enacted the enforcement provision of Title 

II. Sections 504 and 505 of the Rehabilitation Act, and their implementing 

regulations, established a system of administrative enforcement that replicated the 

one in § 602 of the Civil Rights Act. This system permits both individual complaints 

and federal agency oversight to lead to investigations that may end with federal 

enforcement actions. This is illustrated in Rehabilitation Act enforcement litigation. 

B. Department of Justice Enforcement of the Rehabilitation Act

The United States and Florida dispute whether the United States has enforced 

the Rehabilitation Act through litigation. Florida argues that, because there have 

been no such enforcement actions, this undercuts the United States’s argument that 

Congress knew the Rehabilitation Act could trigger federal litigation, and so 

incorporated the same intent in Title II. 

The United States has filed suit to enforce the Rehabilitation Act. There 

appear to be fewer cases than Title VI enforcement, but this is not surprising. Federal 

investigations may not always culminate in litigation. The Rehabilitation Act was 

intended to track Title VI, which requires that agencies attempt to achieve voluntary 

compliance through informal means before terminating funding or taking “any other 

means authorized by law.” 42 U.S.C. § 2000d-1; 29 U.S.C. § 794a(a)(2). 

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Although much of the litigation under the Rehabilitation Act was brought by 

private parties, that does not automatically lead to the conclusion that a private right 

of action is the sole method of enforcement. Reliance on a private right of action 

may be more attractive to individuals who want to ensure that they receive relief that 

best fits their circumstances and goals. For example, they can control the progress 

of the litigation or settle on their own terms. See Block, supra, at 9–10. Litigation 

over whether there was an implied private right of action in the Rehabilitation Act 

recognized that the Rehabilitation Act also contained an administrative-enforcement 

system. See Miener v. Missouri, 673 F.2d 969, 978 (8th Cir. 1982); Pushkin v. 

Regents of Univ. of Colo., 658 F.2d 1372, 1381 (10th Cir. 1981); Camenisch v. Univ. 

of Tex., 616 F.2d 127, 133–34 (5th Cir. 1980), vacated on other grounds, 451 U.S. 

390 (1981); Kling v. Los Angeles Cty., 633 F.2d 876, 879 (9th Cir. 1980); NAACP 

v. Med. Ctr., Inc., 559 F.2d 1247, 1254–55, 1258 (3d Cir. 1979). 

The United States has brought suits to ensure compliance with the 

Rehabilitation Act, and each of those suits took place after the relevant agency had 

received a complaint and investigated. See United States v. Bd. of Trustees for Univ. 

of Ala., 908 F.2d 740, 742 (11th Cir. 1990) (deaf student filed complaint in 1979 

alleging University improperly denied sign-language interpreter services, 

government filed suit to enforce Rehabilitation Act); United States v. Baylor Univ. 

Med. Ctr., 736 F.2d 1039, 1041 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985) 

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(deaf patient filed complaint that hospital refused to permit her to bring an 

interpreter, hospital refused to allow HHS to investigate); United States v. Univ. 

Hosp. of State Univ. of N.Y. at Stony Brook, 729 F.2d 144, 147 (2d Cir. 1984) (United 

States filed suit after receiving a complaint relating to medical treatment of disabled 

baby). 

Florida argues that Baylor Univ. Med. Ctr. was not an enforcement action 

because the central question was whether the receipt of Medicare and Medicaid 

funds made the hospital a recipient of federal financial assistance subject to § 504. 

Florida is correct about the nature of the central question, but it errs in characterizing 

Baylor as anything other than an enforcement action. The United States and the 

Medical Center had both sought summary judgment on the question of federal 

funding, and the district court awarded it to the United States. Id. at 1041–42. It 

concluded that the Medical Center was in violation of § 504 and suspended all future 

Medicare and Medicaid payments to the Medical Center until it complied with the 

investigation. Id. at 1042. The question of the receipt of federal financial assistance 

was essential to determining whether the Medical Center was violating § 504 and 

whether the United States could enforce § 504. Ibid. 

The Fifth Circuit affirmed the conclusion that the hospital was a federalfunding recipient but determined that the district court abused its discretion in 

suspending the funding immediately. Id. at 1050. It relied on the history of the 

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Rehabilitation Act and its relationship to Title VI. Administrative enforcement 

remedies, the court explained, were inconsistent with an immediate, automatic 

suspension of federal funding because § 602 sets out very specific procedures to be 

implemented before terminating funding. Ibid. The court also specifically stated

that agencies seeking to enforce § 504 may “resort to ‘any other means authorized 

by law’—including the federal courts.” Ibid. (citing United States v. Marion Cty. 

Sch. Dist., 625 F.2d 607 (5th Cir. 1980)). 

The Second Circuit has considered the nature of the United States’s authority 

to enforce § 504. In Stony Brook, 729 F.2d at 148, the United States filed suit,

alleging that a hospital had violated § 504 and accompanying regulations by refusing 

to provide information regarding medical care provided to a baby born with severe 

disabilities. The Second Circuit, applying the assumption that § 504 covered the 

hospital, and determining that the baby was a “handicapped individual,” id. at 155, 

nonetheless concluded that § 504 did not apply to decisions about medical treatment, 

and that HHS could not proceed in its investigation. Id. at 157–59.15 Importantly, 

15 It is important to note that in United States v. Univ. Hosp. of State Univ. of N.Y. at Stony 

Brook, 729 F.3d 144, 161 (2d Cir. 1984), the relevant Rehabilitation Act claim was whether the 

baby was denied certain surgical interventions on the basis of her disability. The Second Circuit 

pointed out that the hospital was always willing to perform the surgeries if her parents consented, 

thus the baby was treated in an “evenhanded manner” by the hospital. Ibid. The United States’s 

claims in this case are consistent with (although not limited to) the kind of claims raised in 

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999), and, inter alia, concern whether 

Florida is violating Title II of the ADA by failing to provide community placements for individuals 

for whom a less restrictive setting than an institution is appropriate. This is a far cry from a case 

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the court did not conclude that the government lacked any authority to enforce § 504. 

Rather, with the issue of the United States’s authority before it, the court concluded 

that this particular investigation and enforcement action exceeded the 

congressionally delegated enforcement authority under the Rehabilitation Act 

because Congress did not intend for agencies to insert themselves in those 

circumstances. Id. at 160. 

A review of the legislative and regulatory background of the Rehabilitation 

Act, its existing regulations, and legal precedent demonstrate that the Act 

incorporated a system of administrative procedures that included a complaint, 

compliance reviews, investigation, and possible enforcement action by the Attorney 

General. As we have discussed above, Congress was fully aware of this system, it 

is consistent with what Congress intended, and the 1978 Amendments to § 504 and 

§ 505 demonstrate that Congress codified the existing administrative practice of 

using Title VI procedures. Further, by 1980, the Attorney General had been tasked 

with enforcing Title VI, the Rehabilitation Act, Title IX, and other similar statutes. 

It is with this background that we now address the specific language in the 

enforcement provision of Title II of the ADA. 

in which a federal agency sought to investigate (and possibly override) parents’ reasonable, 

informed medical decisions for their child. See also American Acad. of Pediatrics v. Heckler, 561 

F. Supp. 395 (D.D.C. 1983). 

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IV. Enforcement of Title II of the ADA

The United States contends that by incorporating the “remedies, procedures, 

and rights” of the Rehabilitation Act (and accordingly Title VI), “Congress adopted 

a federal administrative enforcement scheme in which persons claiming unlawful 

discrimination may complain to and enlist the aid of federal agencies in compelling 

compliance, potentially leading to a DOJ lawsuit.” Florida argues that, because the 

administrative process was not designed to vindicate individual rights, such actions 

“taken at the executive’s discretion and without the complainant’s involvement” 

deprive the terms “right” and “remedy” of all meaning. Florida relies on precedent 

that recognized a private right of action under the Rehabilitation Act and rejected 

administrative exhaustion, particularly Camenisch v. Univ. of Tex., 616 F.2d 127 

(5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981). 

In recognizing private rights of action, courts have emphasized the potentially 

unsatisfactory nature of administrative remedies for individuals under Title VI and 

the Rehabilitation Act. See id. at 135. That argument lends support to finding an 

implied cause of action to permit individuals to seek personal redress. Ibid. It does 

not, however, automatically lead to the conclusion that government enforcement is 

impermissible. Ensuring that public entities subject to federal statutes comply with 

those states ultimately vindicates individuals’ personal rights. Although some 

plaintiffs may prefer private remedies, that fact does not persuade us that we should 

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ignore Congress’s decision to enact a statutory scheme that permits the government 

to enforce Title II. 

A. Title II Enforcement Regulations Follow Regulations Promulgated 

Under the Rehabilitation Act and Title VI

Congress directed the Attorney General to “promulgate regulations . . . that 

implement” Title II. 42 U.S.C. § 12134(a). Congress directed that those regulations 

“be consistent with this chapter and with the coordination regulations under part 41 

of title 28, Code of Federal Regulations (as promulgated by the Department of 

Health, Education, and Welfare on January 13, 1978), applicable to recipients of 

Federal financial assistance under section 794 of Title 29.” Id. (b). 

As we have discussed above in Part III.A, pp. 23–28, the 1978 regulations 

required agencies to establish enforcement procedures for § 504. See

Implementation of Executive Order 11,914: Nondiscrimination on the Basis of 

Handicap in Federally Assisted Programs, 43 Fed. Reg. 2132, 2137, § 85.5(a) (Jan. 

13, 1978). Part 41 of title 28 of the Code of Federal Regulations contains the 

regulations that the Attorney General promulgated in response to Executive Order 

12,250, Nondiscrimination on the Basis of Handicap in Federally Assisted 

Programs, which, as we have already observed, are the same as HEW’s January 13, 

1978 regulations. Those regulations required agencies to use the “enforcement and 

hearing procedures that the agency has adopted for the enforcement of [T]itle VI of 

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the Civil Rights Act of 1964[.]” Compare 28 C.F.R. § 41.5, with 43 Fed. Reg. 2137,

§ 85.5(a). 

The Department of Justice then issued regulations that, consistent with 

Congress’s directive in § 12134, established an administrative scheme for Title II 

similar to the ones available for the Rehabilitation Act and Title VI. See 28 C.F.R. 

§§ 35.170–35.174, 35.190. An individual may file a complaint with the appropriate 

federal agency, any agency that provides funding to the public entity allegedly 

discriminating, or with the Department of Justice. 28 C.F.R. § 35.170. Agencies 

“shall” investigate complaints, may conduct compliance reviews, and, if appropriate, 

attempt informal resolution.16 Id. § 35.172(a)–(c). If an agency can obtain voluntary 

compliance, then such agreements must provide for enforcement by the Attorney 

General. Id. § 35.173(b)(5). 

16 Florida points out that the Department of Justice amended its regulations to clarify that 

agencies are not obligated to investigate administrative complaints alleging violations of Title II. 

In 2010, the Department modified its regulations. See Nondiscrimination on the Basis of Disability 

in State and Local Government Services, 75 Fed. Reg. 56,164, 56,228 (Sept. 15, 2010). The 

Department explained that, since Title II regulations went into effect, it had “received many more 

complaints alleging violations of [T]itle II than its resources permit it to resolve.” Ibid. It modified 

a regulation to clarify that designated agencies may exercise discretion in determining which 

complaints they select to resolve. Agencies may still “engage in conscientious enforcement” 

without fully investigating each complaint. Ibid. Rather, the Department explained that the 

modification was to permit agencies to assess whether agencies are likely to succeed in 

enforcement, whether the enforcement is consistent with the agencies’ policies, and whether 

agencies’ limited resources are best spent on a particular complaint. Ibid. A person who complains 

to an agency may still file suit regardless of the agency’s resolution of the matter. 28 C.F.R. 

§ 35.172(d). As we have already said, this argument certainly supports an implied private right of 

action. But our concern is with government, rather than private, enforcement. 

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Agencies are required to issue a letter of findings that provides public entities 

their findings of fact, conclusions of law, description of remedies for violations, and 

notice of available rights and procedures. Id. § 35.172(c). If a public entity “declines 

to enter into voluntary compliance negotiations or if negotiations are unsuccessful, 

the designated agency shall refer the matter to the Attorney General with a 

recommendation for appropriate action.” Id. § 35.174. Complainants may file 

private suits under 42 U.S.C. § 12133, regardless of whether or not an agency finds 

a violation. Id. § 35.172(d). 

The district court dismissed Congress’s directive to the Attorney General in 

§ 12134(a)–(b) to implement regulations that must be consistent with Title II and the 

Rehabilitation Act enforcement regulations. C.V., 209 F. Supp. 3d at 1288. Relying 

on Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1313

(10th Cir. 2012), and Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1179 (9th 

Cir. 1999), the district court explained that § 12134(a) “authorizes the Attorney 

General to define the substantive standards for discrimination under Title II,” and 

“the consistency mandate merely ensures that Title II’s substantive standards are 

analogous to those under the Rehabilitation Act.” C.V., 209 F. Supp. 3d at 1288. It 

quoted Zimmerman, 170 F.3d at 1179, for the proposition that “42 U.S.C. § 12134(b) 

does not suggest that Congress intended to incorporate any provisions from the 

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Rehabilitation Act into Title II.” C.V., 209 F. Supp. 3d at 1288 (emphasis in 

original).17

But Elwell and Zimmerman addressed a very different issue than the one 

presented here. Both of those cases considered whether Title II permitted 

individuals to bring employment discrimination claims against public entities. See

Elwell, 693 F.3d at 1305–06; Zimmerman, 170 F.3d at 1171–72. In those cases,

plaintiffs contended that, because Title II incorporated § 505 of the Rehabilitation 

Act’s “remedies, procedures, and rights,” Congress intended to adopt the 

Rehabilitation Act’s prohibition on employment discrimination. Elwell, 693 F.3d at 

1312; Zimmerman, 170 F.3d at 1179. Both Elwell and Zimmerman firmly rejected 

this argument, pointing out that Congress adopted the Rehabilitation Act’s 

procedural rights in Title II, rather than its substantive prohibitions on employment 

discrimination. After all, Congress had already extensively addressed employment 

discrimination in Title I of the ADA. Elwell, 693 F.3d at 1312; Zimmerman, 170 

F.3d at 1179. Both opinions also rejected the argument that, because the Attorney 

17 The district court made a critical omission when it quoted Zimmerman v. Or. Dep’t of 

Justice, 170 F.3d 1169, 1179 (9th Cir. 1999). The full sentence reads: “Unlike 42 U.S.C. § 12133, 

42 U.S.C. § 12134(b) does not suggest that Congress intended to incorporate any provisions from 

the Rehabilitation Act into Title II.” Ibid. (emphasis added). The Ninth Circuit emphasized that 

the requirement of “consistency” in areas of regulatory overlap did not demonstrate an intent to 

incorporate substantive provisions concerning an entirely separate subject (employment) that 

Congress had already addressed exhaustively in Title I. Id. at 1179–80. Here, by contrast, the 

requirement of consistency makes far more sense when Title II addresses public services provided 

by public entities and the relevant regulations address the same subject. 

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General’s Title II regulations were required to be consistent with certain 

Rehabilitation Act regulations, it adopted the Rehabilitation Act regulations that 

prohibited discrimination in employment. Elwell, 693 F.3d at 1312–13; 

Zimmerman, 179 F.3d at 1179–80. 

Elwell and Zimmerman do support a conclusion that the Attorney General’s 

regulations to implement Title II were intended to be consistent with the 

Rehabilitation Act in the areas where they might overlap. The regulations included 

definitions of certain terms, identified types of prohibited discrimination, and 

accessibility standards. Zimmerman, 170 F.3d at 1179–80; Elwell, 693 F.3d at 1313. 

Title II: (1) expressly addresses public services provided by public entities; 42 

U.S.C. § 12132; (2) directly incorporates the rights, procedures, and remedies 

available in § 505(a)(2) of the Rehabilitation Act for violations of the prohibition on 

discrimination by programs or activities that receive federal financial assistance; id.

at § 12133; and (3) directs that regulations to implement Title II must be “consistent” 

with certain Rehabilitation Act regulations that apply to recipients of Federal 

financial assistance. Id. § 12134. 

The consistency requirement in § 12134(b) leads to the conclusion that 

Congress intended the Attorney General’s Title II regulations to adopt the 

Rehabilitation Act’s Title-VI-type enforcement procedures because Title II’s 

enforcement procedure used the Rehabilitation Act’s enforcement structure. See S. 

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Rep. No. 101-116, at 57 (1989) (explaining that the Attorney General should use 

§ 504 enforcement procedures and its role under Executive Order 12,250 as “models 

for regulation); H.R. Rep. No. 101-485 II, at 98 (1990), reprinted in 1990 

U.S.C.C.A.N. 303, 381 (same). 

We considered that the Attorney General’s Title II regulations were “entitled 

to controlling weight” in Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th 

Cir. 2003). “Congress expressly authorized the Attorney General to make rules with 

the force of law interpreting and implementing the ADA provisions generally 

applicable to public services.” Ibid. (citing 42 U.S.C. § 12134(a)). See also 

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597–98 (1999) (“Because the 

Department [of Justice] is the agency directed by Congress to issue regulations 

implementing Title II . . . its views warrant respect.” (citation omitted)). 

These regulations are reasonably related to the legislative purpose of the 

ADA, which included federal enforcement. Id. at 1179 & n. 25. They are consistent 

with the remedial structure that Congress selected for Title II, in that they adopt 

similar enforcement procedures to the Rehabilitation Act and Title VI, as Congress 

directed. Thus, “[b]ecause Congress explicitly delegated authority to construe the 

statute by regulation, in this case we must give the regulations legislative and hence 

controlling weight unless they are arbitrary, capricious, or plainly contrary to the 

statute.” United States v. Morton, 467 U.S. 822, 834 (1984), accord Yeskey v. Com. 

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of Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d sub nom. Pennsylvania 

Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998); Kornblau v. Dade Cty., 86 F.3d 193, 

194 (11th Cir. 1996).

B. Title II of the ADA Permits Department of Justice Enforcement

To be sure, the Attorney General may not, by regulation, employ a cause of 

action where none was intended. See Sandoval, 532 U.S. at 291 (concluding that 

regulations may not create a private right of action where Congress did not so 

intend); Marshall v. Gibson’s Prods., Inc. of Plano, 584 F.2d 668, 677–78 & n.16 

(5th Cir. 1978). But Title II incorporated the Rehabilitation Act’s procedural rights. 

See Elwell, 693 F.3d at 1312; Zimmerman, 170 F.3d at 1179. Congress chose to use 

§ 505(a)(2) of the Rehabilitation Act as the enforcement mechanism for Title II of 

the ADA, with full knowledge that those provisions established administrative 

enforcement and oversight in accordance with Title VI. Congress also knew that, 

by adopting § 502(a)(2), it incorporated Title VI’s “any other means authorized by 

law” provision.

The district court concluded that the “simpler explanation” was that 

“Congress did not incorporate all ‘remedies, procedures, and rights’ available under 

Title VI—it incorporated only those ‘remedies, procedures, and rights’ that may be 

exercised by a ‘person alleging discrimination.’” C.V., 209 F. Supp. 3d at 1286–87 

(quoting 42 U.S.C. § 12133) (emphasis in original). It reasoned that, as “the power 

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to terminate federal funding under Title VI has no foothold in Title II,” the available 

enforcement remedy is simply a private lawsuit.18 Id. at 1287. 

This conclusion is inconsistent with the statutory text, and Congress’s 

directive that Title II’s remedies are the same as the Rehabilitation Act. See Barnes, 

536 U.S. at 185. At the time Congress enacted the ADA, there had been a number 

of decisions from the Supreme Court and the circuits regarding the availability of an 

implied private right of action under Title VI and the Rehabilitation Act. If Congress 

only intended to create a private right of action under Title II, then its decision to 

cross-reference to § 505 of the Rehabilitation Act, which expressly incorporates Title 

VI, including its administrative enforcement scheme in § 602, would be mystifying, 

especially because it had directed the Attorney General to develop regulations that 

were to be consistent with Rehabilitation Act enforcement procedures that included 

Title VI enforcement. See 42 U.S.C. § 12134. 

It is true that Title II, unlike the Rehabilitation Act and Title VI, does not 

condition the right to enforce the statute on a defendant’s receipt of federal funding. 

18 The district court’s reliance on Alexander v. Sandoval, 532 U.S. 275 (2001), is 

misplaced. There, the Supreme Court, interpreting § 602 of the Civil Rights Act, explained that 

§ 602 did not confer rights on individuals, rather it focused on federal agencies’ responsibilities. 

Id. at 289. The implication from Sandoval, as was observed in United States v. Maricopa Cty., 

151 F. Supp. 3d 998, 1018 (D. Ariz. 2015), is that when enforcement provisions focus on a 

particular party, it is more likely that Congress gave that party the ability to enforce the provision. 

Sandoval’s logic lends more support to concluding that there is a right of action for federal agency 

enforcement in § 602’s reference to “any other means authorized by law.” Ibid.

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But, as the Supreme Court observed in Barnes v. Gorman, 536 U.S. 181, 189 n.3 

(2002), that does not mean that an analysis of the available “remedies, procedures, 

and rights” turns on that distinction. Justice Scalia (who wrote the Court’s opinion)

and Justice Stevens (who concurred only in the judgment) disagreed over the 

relevance of contract-law principles to the Court’s conclusion that punitive damages 

were not available in Title II suits. See id. at 189–90 (Scalia, J.), 192–93 (Stevens, 

J., concurring in the judgment). The Court had determined that because such 

damages were not available in suits under Title VI or the Rehabilitation Act, which 

were Spending Clause legislation, they were not available in Title II suits. Id. at 

189–90. Justice Scalia noted that the ADA is not Spending Clause legislation, but 

rejected the distinction because Congress had “unequivocally” selected remedies 

derived from Spending Clause legislation when it enacted the ADA.

The ADA could not be clearer that the “remedies, 

procedures, and rights . . . this subchapter provides” for 

violations of § 202 are the same as the “remedies, 

procedures, and rights set forth in” § 505(a)(2) of the 

Rehabilitation Act, which is Spending Clause legislation. 

Section 505(a)(2), in turn, explains that the “remedies, 

procedures, and rights set forth in title VI . . . shall be 

available” for violations of § 504 of the Rehabilitation 

Act. 

Id. at 189 n.3 (Scalia, J.) (emphasis in original) (citations omitted).

In Barnes, while interpreting the remedial structure of Title II of the ADA, the 

Supreme Court did not consider the federal-funding distinction persuasive because 

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Congress expressly adopted remedies from those Spending Clause statutes. 

Congress intended for those to be the available remedies for Title II because it said 

so.19 See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) 

(“[C]ourts must presume that a legislature says in a statute what it means and means 

in a statute what it says there.”). To determine the available remedies, we must take

Congress at its word. This brings us to Florida’s arguments concerning who may 

file suit under Title II. 

Florida asserts that because Congress did not name the Attorney General in 

Title II, the Attorney General may not sue. It relies on Director, Office of Workers’ 

Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 

514 U.S. 122, 129 (1995), for the proposition that if an agency is meant to have 

standing, then Congress expressly says so. This is one of the key concepts from 

Newport News. The other is that, when making such determinations, courts examine 

the nature, structure, and purpose of the relevant statutory scheme. We do not 

conclude that Newport News dictates the result Florida proposes. 

Newport News examined a single, self-contained statute, rather than a 

complex statutory scheme with two layers of statutory cross-reference. The 

19 Of course, if a public entity does not receive federal funding, then the United States may 

not terminate or withhold such funding. But the ADA prohibits discrimination by all public 

entities, regardless of the source of funding. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1174 

(11th Cir. 2003). 

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Supreme Court considered whether the Director of the Office of Workers’ 

Compensation Programs could, under the judicial review provision of the Longshore 

Harbor Workers’ Compensation Act (“LHWCA”), seek judicial review of a decision 

by the Benefits Review Board. 514 U.S. at 123. 

The relevant statute provided that “‘any person adversely affected or 

aggrieved by’ the Board’s order” could appeal the decision in a United States Court 

of Appeals. Id. at 126 (quoting 33 U.S.C. § 921(c)). The Board had affirmed an 

administrative law judge’s determination that a worker was only partially disabled. 

The Director sought review in the Fourth Circuit, which independently concluded 

that the Director could not seek judicial review because she was not a “person 

adversely affected or aggrieved” by the Board’s decision within the meaning of the 

LHWCA.20

The Supreme Court affirmed. The Director was not a party to the proceedings 

before the administrative law judge, and, under the LHWCA, she could not appeal 

the judge’s determinations to the Board. Thus, allowing her to challenge the Board’s 

determinations in a federal court of appeals would be quite odd. The key phrase in 

the judicial review provision, “a person adversely affected or aggrieved,” is, the 

20 The worker did not seek judicial review, and upon inquiry by the Fourth Circuit, 

“expressly declined to intervene on his own behalf,” although he did not oppose the Director’s 

appeal. Director, Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News 

Shipbuilding & Dry Dock Co., 514 U.S. 122, 124–25 (1995). 

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Court explained, a “term of art” that statutes use to “designate those who have 

standing to challenge or appeal an agency decision, within the agency or before the 

courts.” Id. at 126. But nothing suggested that, “without benefit of specific 

authorization to appeal, an agency, in its regulatory or policy-making capacity, is 

‘adversely affected’ or ‘aggrieved.’”21 Id. at 127. The Court explained that the 

general judicial review provision of the Administrative Procedure Act does not 

include an agency as a person adversely affected or aggrieved, id. at 129, and “when 

an agency in its governmental capacity is meant to have standing, Congress says so.” 

Ibid. (emphasis in original). 

The Court rejected the Director’s argument that she could seek judicial review 

because the Board’s decision impaired her ability to achieve the LHWCA’s purposes 

and perform administrative duties. Id. at 126. The Court observed that the Board’s 

decision did not interfere with the Director’s duties as set forth by the LHWCA, and 

that the purpose of the LHWCA was not to ensure adequate compensation, but rather 

to resolve disputes. Id. at 130–31. Even assuming that the LHWCA’s sole purpose

was to ensure compensation for workers, agencies “do not automatically have 

standing to sue for actions that frustrate the purposes of their statutes[,]” and the 

21 Agencies may be “adversely affected or aggrieved” in some circumstances, such as when 

they are injured in their “nongovernmental capacity . . . as . . . member[s] of the market group that 

the statute was meant to protect.” Newport News, 514 U.S. at 128 (citing United States v. ICC, 

337 U.S. 426, 430 (1949)). 

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plain language of the statute did not show a “clear and distinctive responsibility for 

employee compensation as to overcome” the obvious reading of the text—that the 

“person adversely affected or aggrieved” by the Board’s decision is one of the parties 

to the proceeding. Id. at 132. 

By contrast, here, Congress enacted a statute that drew upon two other statutes 

to create the remedies, rights, and procedures available for enforcement, with the 

full knowledge that the other statutes—the Rehabilitation Act and the Civil Rights 

Act—were enforceable by federal agencies through funding termination or “any 

other means authorized by law.” See 42 U.S.C. § 12133. Then Congress told the 

Attorney General to make regulations (that we defer to) to implement Title II that 

were to be consistent with a set of regulations that traced directly back to Title VI 

regulations. 42 U.S.C. § 12134(a)–(b). Congress was quite clear that Title V of the 

Rehabilitation Act and its accompanying regulations were to be construed as the 

minimum standard for the ADA. 42 U.S.C. § 12201 (“Except as otherwise provided

in this chapter, nothing in this chapter shall be construed to apply a lesser standard 

than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 

790 et seq.) or the regulations issued by Federal agencies pursuant to such title.”). 

By the time Congress enacted the ADA, it had established administrative 

enforcement structures in Title VI and the Rehabilitation Act that each followed the 

same pattern. Various federal investigations under those statutes had culminated in 

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the Department of Justice filing suit in federal court to enforce these statutory 

provisions. Congress knew that both Title VI and the Rehabilitation Act had been 

enforced through Department of Justice litigation, and when it enacted the ADA, 

cross-referencing to Spending Clause remedies—without the federal-funding 

hook—such remedies necessarily entailed federal enforcement actions, particularly 

when § 12133 ultimately cascades back to “any other means authorized by law,” a 

phrase that courts have interpreted to permit referral to the Department of Justice for 

further legal action. See Cannon, 441 U.S. at 710–11 (implying a private remedy in 

part because Congress considered it to be available at the time of enactment); Brown 

v. Gen. Svcs. Admin., 425 U.S. 820, 828 (1976) (“For the relevant inquiry is not 

whether Congress correctly perceived the then state of the law, but rather what its 

perception of the state of the law was.”). The legislative, regulatory, and 

precedential background of the statutes that Congress incorporated demonstrate that 

Congress intended to create a system of federal enforcement for Title II of the ADA. 

Indeed, one of the purposes of the ADA was to ensure that the Federal Government 

“play[ed] a central role in enforcing the standards established in this chapter on 

behalf of individuals with disabilities.” 42 U.S.C. § 12101(b)(3). 

C. The Legislative History of Title II Supports the Attorney General’s 

Authority to File Suit

In considering the legislative history, we are mindful that courts need not 

examine legislative history if the meaning of the statute is plain, but it may do so, 

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particularly if a party’s interpretation is based on a misreading or misapplication of 

legislative history. See Harris v. Garner, 216 F.3d 970, 976–77 (11th Cir. 2000) (en 

banc), cert. denied, 532 U.S. 1065 (2001). Here, both parties dispute the effect of 

certain portions of the legislative history surrounding the enactment of the ADA. 

The United States cites two committee reports, one from the Senate 

Committee on Labor and Human Resources, S. Rep. No. 101-116 (1989), and one 

from the House Committee on Education and Labor, H.R. Rep. No. 101-485 II

(1990), reprinted in 1990 U.S.C.C.A.N. 303, which, it asserts, demonstrate that 

Congress intended that the Department of Justice should enforce Title II. 

Both reports note that Title II’s enforcement provision specifies that the 

“remedies, procedures, and rights” are those available in § 505 of the Rehabilitation 

Act. S. Rep. No. 101-116, at 57; H.R. Rep. No. 101-485 II, at 98, 1990 U.S.C.C.A.N. 

at 381. The Committee reports state (in virtually identical language) that 

administrative enforcement of § 12133 should track federal enforcement practices 

under § 504 of the Rehabilitation Act, and the Attorney General “should use section 

504 enforcement procedures and the Department’s coordination role under 

Executive Order 12250 as models for regulation in this area.” H.R. Rep. No. 101-

485 II, at 98, 1990 U.S.C.C.A.N. at 381; S. Rep. No. 101-116, at 57.

The Committee envisions that the Department of 

Justice will identify appropriate Federal agencies to 

oversee compliance activities for State and local 

governments. As with section 504, these Federal agencies, 

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including the Department of Justice, will receive, 

investigate, and where possible, resolve complaints of 

discrimination. If a Federal agency is unable to resolve a 

complaint by voluntary means, the Federal government 

would use the enforcement sanctions of section 505 of the 

Rehabilitation Act of 1973. Because the fund termination 

procedures of section 505 are inapplicable to State and 

local government entities that do not receive Federal 

funds, the major enforcement sanction for the Federal 

government will be referral of cases by these Federal 

agencies to the Department of Justice.

The Department of Justice may then proceed to file 

suits in Federal district court. As with section 504, there is 

also a private right of action for persons with disabilities, 

which includes the full panoply of remedies. Again, 

consistent with section 504, it is not the Committee’s 

intent that persons with disabilities need to exhaust 

Federal administrative remedies before exercising their 

private right of action.

H.R. Rep. No. 101-485 II, at 98, 1990 U.S.C.C.A.N. at 381; S. Rep. No. 101-116, at 

57–58.22 

Florida emphasizes that these reports refer to an earlier version of the bill, and 

cites another, later report, from the Committee on the Judiciary H.R. Rep. No. 101-

485 III, reprinted in 1990 U.S.C.C.A.N. 445, that does not discuss federal 

enforcement actions under Title II. In discussing Title II’s enforcement provision, 

the report from the Committee on the Judiciary stated: 

22 Title II of the ADA and the Rehabilitation Act do not require a private party to exhaust 

administrative remedies before bringing suit. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d 

1169, 1178 (9th Cir. 1999). 

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Section 205 incorporates the remedies, procedures 

and rights set forth in Section 505 of the Rehabilitation Act 

of 1973. As in [T]itle I, the Committee adopted an 

amendment to delete the term “shall be available” in order 

to clarify that Rehabilitation Act remedies are the only 

remedies which [T]itle II provides for violations of [T]itle 

II. The Rehabilitation Act provides a private right of 

action, with a full panoply of remedies available, as well 

as attorney’s fees. 

H.R. Rep. No. 101-485 III, at 52, 1990 U.S.C.C.A.N. at 475 (footnotes omitted). 

The difference between these Committee Reports is not, however, conclusive. 

First, the report from the Committee on the Judiciary emphasized that Title II 

extended the coverage of § 504 of the Rehabilitation Act, and that it intended for 

Title II to “work in the same manner as Section 504.” Id. at 49–50, 1990 

U.S.C.C.A.N. at 472–73. Second, the reference to a “private right of action” 

included a footnote to Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982), which 

concluded that the Rehabilitation Act contained an implied private right of action

and recognized the federal enforcement structure. Id. at 978. As we have discussed 

above, there had been considerable litigation over whether the Rehabilitation Act 

permitted a private right of action. Thus, references to that private right equally 

permit the inference that Congress wanted to be clear that Title II did not just track 

the administrative enforcement structure of the Rehabilitation Act and Title VI, but 

also authorized a private right of action. 

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This legislative history is not dispositive—indeed, we are wary of putting 

much, if any weight on various committee reports when the text of the bill was 

subsequently amended. More significantly, other courts considering this question 

have concluded that the Attorney General has the power to enforce Title II in federal 

court.23 

23 Florida, adopting the district court’s arguments, contends that the Civil Rights of 

Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (“CRIPA”), is an express mechanism to 

protect the rights of institutionalized persons. The district court concluded that “[r]ecognizing the 

authority the Department seeks in this case would, in effect, allow an end-run around CRIPA’s 

stringent requirements.” C.V. v. Dudek, 209 F. Supp. 3d 1279, 1290 (S.D. Fla. 2016). 

CRIPA requires that the Attorney General have reasonable cause to believe that “any State 

or political subdivision of a State, official, employee, or agent thereof, or other person acting on 

behalf of a State or political subdivision of a State” is subjecting persons confined in an institution 

to “egregious or flagrant conditions” that deprive them of rights, privileges or immunities secured 

or protected by the Constitution or laws of the Untied States that causes them “grievous harm” and 

is “pursuant to a pattern or practice” before filing suit. 42 U.S.C. § 1997a(a). But CRIPA is 

irrelevant in this case. Institutions that are subject to CRIPA must be “owned, operated, or 

managed by, or provide[] services on behalf of any State or political subdivision of a State,” 42 

U.S.C. § 1997(1)(A), and include institutions that provide “skilled nursing, intermediate or longterm care, or custodial or residential care.” Id. (B)(v). Privately owned and operated facilities are 

not subject to CRIPA if either licensing or receipt of payments under Medicaid, Medicare, or 

Social Security, are the “sole nexus” between the facility and the State. Id. (2)(C). A review of 

the record seems to indicate that the nursing facilities at issue are private facilities that receive 

payments from Florida through Medicaid. Further, the United States’ claims address more than 

just practices within Florida’s institutions. 

There is nothing to suggest that CRIPA was intended to be the only means of enforcing the 

rights of institutionalized persons. Congress enacted CRIPA some ten years before the ADA. 

Presumably Congress was aware that CRIPA existed, and yet it chose to enact the ADA, which 

reaches far more broadly, and provides protection against unnecessary institutionalization. See 42 

U.S.C. § 12101; Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Obviously Congress can 

create different types of enforcement schemes for different types of statutory or constitutional 

violations. 

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D. The Department of Justice Has Filed Suit to Enforce Title II

We are not the first court to pass upon this issue, and a review of other cases 

that have considered whether Title II permits the Attorney General to file suit 

demonstrates that the district court’s decision is an outlier. 

This Circuit has generally acknowledged the scope of potential federal 

enforcement under Title II, in Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1175 

(11th Cir. 2003). In that case, we concluded that individuals could be liable under 

the ADA’s anti-retaliation provision where the retaliation took place in response to 

opposition against discrimination prohibited by Title II. Id. at 1163. To do so, we 

explained, would not be inconsistent with the “allowed scope of government 

enforcement action” because the ADA is not Spending Clause legislation and 

funding-termination procedures are not applicable to public entities that do not 

receive federal funding. Id. at 1175. We concluded that the ADA and its 

accompanying regulations did not “indicate” that enforcement by referral to the 

Department of Justice or the Attorney General for appropriate action could not be 

taken against individuals. Ibid. 

In United States v. City & Cty. of Denver, 927 F. Supp. 1396, 1399 (D. Colo. 

1996), the district court considered whether the Attorney General had authority to 

file suit under Title II of the ADA. After describing the statutory cascade from 

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§ 12133, to § 504 of the Rehabilitation Act, to § 602 of Title VI, the district court 

observed that “[c]ourts have interpreted the words ‘by any other means authorized 

by law’ to mean that a funding agency, after finding a violation and determining that 

voluntary compliance is not forthcoming, could refer a matter to the Department of 

Justice to enforce the statute’s nondiscrimination requirements in court.” Id. at 1400

(citing National Black Police Ass’n, 712 F.2d at 575 & n.33; Marion Cty., 625 F.2d 

at 612 & n.12). The United States’s regulations that implemented Title II were 

consistent with the administrative procedures under Title VI and the Rehabilitation 

Act. Ibid. The district court concluded that, by investigating, attempting to negotiate 

with Denver, and following Denver’s refusal to enter into an agreement, the United 

States complied with the procedural requirements for Title II of the ADA (which 

were consistent with § 602’s requirement that no action be taken until the department 

had advised the noncompliant party of its failure, and attempted to secure 

compliance through voluntary means). Ibid. 

In Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 484–85 (E.D. Pa. 2004), 

Smith filed suit alleging that, upon learning that he had AIDS, paramedics refused 

to assist him, in violation of Title II of the ADA. The United States intervened. Id.

at 484. The district court ruled that Smith’s claims were time barred but concluded 

that the United States could proceed with its enforcement action because it had a 

separate and independent base of jurisdiction under Title II and § 504 of the 

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Rehabilitation Act. Id. at 489. The district court’s reasoning tracked the reasoning 

used in City & Cty. of Denver. Because the Title II’s enforcement provision cascades

to § 602, which authorizes the Attorney General to enforce compliance with Title VI 

by filing suit in federal court, “the Attorney General may also bring suit to enforce 

other statutes which adhere to the enforcement scheme set forth in Title VI.” Id. at 

490. 

Other courts have considered this matter and reached the same conclusion

following the same analysis. See United States v. Harris Cty., No. 4:16-cv-2331, 

2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017); United States v. Virginia, No. 

3:12-cv-59-JAG, 2012 WL 13034148, at *2–3 (E.D. Va. June 5, 2012); United 

States v. Arkansas, No. 4:10-cv-00327, 2011 WL 251107, at *3, *8 (E.D. Ark. Jan. 

24, 2011) (concluding that the Department of Justice had authority to initiate a civil 

action to enforce Title II but dismissing the complaint without prejudice because the 

Department had not sufficiently alleged that it had complied with statutory 

prerequisites). 

Other cases the United States has filed to enforce Title II have not considered 

the question of standing but were litigated without jurisdictional challenge in the 

federal courts. See, e.g., United States v. Gates-Chili Cent. Sch. Dist., 198 F. Supp. 

3d 228 (W.D.N.Y. 2016) (alleging ADA violations from a school’s rule regarding a 

student’s service dog); United States v. City of Balt., 845 F. Supp. 2d 640, 642 n.1 

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(D. Md. 2012) (DOJ filed suit alleging that the City of Baltimore Zoning Code 

discriminates against individuals receiving treatment in residential substance abuse 

provisions in violation of Title II of the ADA); United States v. N. Ill. Special 

Recreation Ass’n, No. 12-c-7613, 2013 WL 1499034 (N.D. Ill. Apr. 11, 2013) 

(United States filed suit alleging discrimination against individuals with epilepsy in 

violation of Title II). 

When confronted with this issue, courts have routinely concluded that 

Congress’s decision to utilize the same enforcement mechanism for Title II as the 

Rehabilitation Act, and therefore Title VI, demonstrates that the Attorney General 

has the authority to act “by any other means authorized by law” to enforce Title II, 

including initiating a civil action. We agree with this reasoning. 

E. Federalism Principles Do Not Alter Our Conclusion

Florida contends that principles of federalism dictate a different result and 

complains that “the federal government has haled a State into court over questions 

that go to the heart of its sovereignty: the weighing of competing healthcare 

policies.” Relying on Gregory v. Ashcroft, 501 U.S. 452 (1991), Florida asserts that 

Congress did not make a clear statement in Title II that it intended to “empower the 

federal executive to sue the States[.]” Florida argues that we should not presume 

that Congress intended to authorize such litigation without a clear statement because 

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federal enforcement actions impose “considerable federalism costs,” and such 

litigation is “coercive.” 

In Gregory, the Supreme Court considered whether a mandatory age-based 

retirement provision for judges in the Missouri Constitution violated the Age 

Discrimination in Employment Act (“ADEA”). 501 U.S. at 455. The Court 

recognized that, under the Supremacy Clause, Congress may legislate in areas 

usually controlled by states provided that it is within its constitutional authority. Id.

at 460. But, the Court pointed out, the structure of a State’s government and the 

qualifications it establishes for exercising government authority are fundamental 

questions of sovereignty, particularly when it comes to identifying constitutional 

officers. Ibid. For Congress to interfere with those issues would seriously disrupt 

the “usual constitutional balance of federal and state powers.” Ibid. Therefore, the 

Court would not read the ADEA to reach state judges unless Congress expressly 

indicated that it should. Because the ADEA identified an exception for “appointees 

on the policymaking level,” the Court decided that was “sufficiently broad” to permit 

a conclusion that the ADEA did not reach state judges. Id. at 467. Gregory instructs 

us that, to alter the usual balance between state and federal interests, Congress must 

speak clearly.

Congress has done so. Twenty years ago, in Pennsylvania Dep’t of Corr. v. 

Yeskey, 524 U.S. 206, 208 (1998), the Supreme Court considered whether Title II 

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applied to state prisons. “Assuming, without deciding, that the plain-statement rule” 

of Gregory controlled the application of the ADA to state prisons, the Court 

concluded that, unlike in Gregory, the language of the ADA “plainly cover[ed] state 

institutions without any exception that could cast the coverage of prisons into doubt.” 

Id. at 209–10 (citing 42 U.S.C. § 12131(1)(B)).24 

Our analysis is similarly straightforward. Even assuming the “plain statement 

rule” applies, Congress expressly intended for Title II to reach states. Title II of the 

ADA defines “public entities” as “any State or local government,” or “any 

department, agency, special purpose district, or other instrumentality of a State or 

States or local government . . . .” 42 U.S.C. § 12131(1)(A)–(B). Florida has been a 

state since 1845. Thus, it “fall[s] squarely within the statutory definition of ‘public 

entity[]’ . . . .” Yeskey, 524 U.S. at 210. 

Florida may have valid complaints about this lawsuit, but whether it is 

amenable to suit by the United States is not one of them. The Supreme Court has 

consistently recognized that, “[i]n ratifying the Constitution, the States consented to 

suits brought by other states or by the Federal Government.” Alden v. Maine, 527 

24 The Supreme Court declined to consider whether the application of the ADA to state 

prisons was a constitutional exercise of Congress’s power under either the Commerce Clause or 

§ 5 of the Fourteenth Amendment because the courts below had not considered the issue. 

Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212–13 (1998). We similarly do not need 

to reach the question of whether application of the ADA to a state is a constitutional exercise of 

Congressional power because it is not before us. 

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U.S. 706, 755 (1999). States do not retain sovereign immunity from suits brought 

by the federal government. See West Virginia v. United States, 479 U.S. 305, 311

n.4 (1987); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.14 (1996); 

Principality of Monaco v. Mississippi, 292 U.S. 313, 329 (1934); United States v. 

Miss. Dep’t of Pub. Safety, 321 F.3d 495, 498–99 (5th Cir. 2003) (concluding that 

the Eleventh Amendment does not bar the United States from suing a state to enforce 

Title I of the ADA). 

To be sure, there are “federalism costs inherent in referring state decisions 

regarding the administration of treatment programs and the allocation of resources 

to the reviewing authority of the federal courts.” Olmstead, 527 U.S. at 610 

(Kennedy, J., concurring). But the Supreme Court struck that balance in Olmstead, 

holding that the requirement that States provide community-based treatment must 

be tempered by: (1) a determination by the State’s treatment professionals that such 

placement is appropriate; (2) the individuals to receive such treatment do not oppose 

it; and (3) the placement can be accommodated, considering the state’s resources 

and the needs of other individuals who receive such treatment. Id. at 607. The same 

considerations in Olmstead apply to the merits of this case. Florida’s federalism 

concerns do not dictate a different result. 

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CONCLUSION 

When Congress chose to designate the “remedies, procedures, and rights” in 

§ 505 of the Rehabilitation Act, which in turn adopted Title VI, as the enforcement 

provision for Title II of the ADA, Congress created a system of federal enforcement. 

The express statutory language in Title II adopts federal statutes that use a remedial 

structure based on investigation of complaints, compliance reviews, negotiation to 

achieve voluntary compliance, and ultimately enforcement through “any other 

means authorized by law” in the event of noncompliance. In the other referenced 

statutes, the Attorney General may sue. The same is true here. 

For the foregoing reasons, we REVERSE the district court’s judgment and 

REMAND for proceedings consistent with this opinion. 

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BRANCH, Circuit Judge, dissenting:

Because the United States is not a “person alleging discrimination” under 

Title II of the Americans with Disabilities Act (“ADA”), Title II does not provide 

the Attorney General of the United States with a cause of action to enforce its 

priorities against the State of Florida. Accordingly, I respectfully dissent. 

The relevant text of Title II states: 

The remedies, procedures, and rights set forth in section 794a of Title 

29 shall be the remedies, procedures, and rights this subchapter 

provides to any person alleging discrimination on the basis of 

disability in violation of section 12132 of this title.

42 U.S.C. § 12133 (emphasis added). The language of this provision is 

unambiguous. Title II provides enforcement rights “to any person alleging 

discrimination.” Thus, the question is whether the Attorney General is a “person 

alleging discrimination” under Title II. 

To answer that question, we apply “a ‘longstanding interpretive presumption 

that ‘person’ does not include the sovereign,’ and thus excludes a federal agency.” 

Return Mail, Inc. v. USPS, 587 U.S. ____, No. 17-1594, 2019 WL 2412904, at *5 

(June 10, 2019) (quoting Vermont Agency of Natural Resources v. US ex rel. 

Stevens, 529 U. S. 765, 780–781 (2000)). In Return Mail, the Supreme Court 

considered whether the United States Postal Service (“USPS”), a federal agency, 

was a “person” eligible to seek patent review under the America Invents Act

 59

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(“AIA”). USPS had petitioned for review of Return Mail’s patent under two

sections of the AIA that allow for post-issuance patent review. Id. at *4–5. 

However, the language of the AIA limited post-issuance review proceedings to “a 

person who is not the owner of a patent,” id. (citing 35 U.S.C. §§ 311(a), 321(a)), 

or when “the person or the person’s real party in interest or privy has been sued for 

infringement.” Id. (citing AIA § 18(a)(1)(B), 125 Stat. 330). Thus, the direct 

question presented to the Supreme Court in Return Mail was: “whether a federal 

agency is a ‘person’ capable of petitioning for post-issuance review under the 

AIA.” Id. In concluding that the Government presumptively is not a “person” for 

purposes of federal statutes, the Supreme Court explained: 

This presumption reflects “common usage.” United States v. Mine 

Workers, 330 U.S. 258, 275 (1947). It is also an express directive 

from Congress: The Dictionary Act has since 1947 provided the 

definition of “person” that courts use “[i]n determining the meaning of 

any Act of Congress, unless the context indicates otherwise.” 1 U.S.C. 

§ 1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory 

Council, 506 U.S. 194, 199–200 (1993). The Act provides that the 

word “person . . . include[s] corporations, companies, associations, 

firms, partnerships, societies, and joint stock companies, as well as 

individuals.” § 1. Notably absent from the list of “person[s]” is the 

Federal Government. See Mine Workers, 330 U.S. at 275 (reasoning 

that Congress’ express inclusion of partnerships and corporations in § 

1 implies that Congress did not intend to include the Government). 

Thus, although the presumption is not a “hard and fast rule of 

exclusion,” United States v. Cooper Corp., 312 U.S. 600, 604–605 

(1941), “it may be disregarded only upon some affirmative showing 

of statutory intent to the contrary.” Stevens, 529 U.S. at 781.

Id. at *6. 

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Given Return Mail’s clear explanation of the presumption in favor of 

excluding the Federal Government from the definition of “person,” I approach the 

analysis of Title II the same way. As such, I begin with the presumption that 

“person alleging discrimination,” 42 U.S.C. § 12133, does not include the United 

States. See Return Mail, 2019 WL 2412904, at *5. In order to overcome “the 

presumption that a statutory reference to a ‘person’ does not include the 

Government,” there must be “some indication in the text or context of the statute 

that affirmatively shows Congress intended to include the Government” in its 

definition of “person.” Id. Nothing in the text of Title II overcomes this 

presumption. But Return Mail states that context matters, too. And so I next 

examine the enforcement language contained in the other Titles of the ADA.1

 

In Title I of the ADA, the enforcement language provides as follows:

The powers, remedies, and procedures set forth in . . . this title shall 

be the powers, remedies, and procedures this subchapter provides to 

the Commission, to the Attorney General, or to any person 

alleging discrimination on the basis of disability in violation of any 

provision of this chapter, or regulations promulgated under section 

12116 of this title, concerning employment.

1 The ADA contains three primary subchapters, each referred to as a separate “Title.” 

Each Title “forbids discrimination against persons with disabilities in three major areas of public 

life: employment, which is covered by Title I of the statute; public services, programs, and 

activities, which are the subject of Title II; and public accommodations, which are covered by 

Title III.” Tennessee v. Lane, 541 U.S. 509, 516–17 (2004). 

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42 U.S.C. § 12117(a) (emphasis added). The text of Title I thus explicitly conveys 

the “powers, remedies, and procedures . . . to the Attorney General.” Id. Title II 

echoes the “any person alleging discrimination” language contained in Title I, but 

the reference to “the Attorney General” is conspicuously missing from Title II. 

Compare 42 U.S.C. § 12133, with 42 U.S.C. § 12117(a).

Title III of the ADA also contains language bestowing enforcement 

authority on the Attorney General:

If the Attorney General has reasonable cause to believe that—(i) any 

person or group of persons is engaged in a pattern or practice of 

discrimination under this subchapter; or (ii) any person or group of 

persons has been discriminated against under this subchapter and such 

discrimination raises an issue of general public importance, the 

Attorney General may commence a civil action in any appropriate 

United States district court.

42 U.S.C. § 12188(b)(B) (emphasis added). The text of Title III of the ADA is 

even more explicit than the text of Title I and clearly provides the Attorney 

General with the authority to bring a civil suit in federal court. Title II, by contrast, 

is entirely devoid of any reference to “the Attorney General” or the power to 

“commence a civil action.” Compare 42 U.S.C. § 12133 with 42 U.S.C. 

§ 12188(b)(B).

The difference in language across the ADA’s three titles is noteworthy. It is 

well settled that, “where Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is generally presumed that 

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Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong 

Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). If Congress had intended to grant a 

civil cause of action to the Attorney General in Title II, “it presumably would have 

done so expressly as it did in” Titles I and III. See Russello, 464 U.S. at 23. 

Yet the majority essentially reads Title III’s language (that “the Attorney 

General may commence a civil action in any appropriate United States district 

court”) into Title II. Although the majority readily admits that, “at first glance, 

Title II’s enforcement provision is not as specific as those in Titles I and III,” it 

finds these differences inconsequential. The majority reasons that the differences

between Title II and the other subchapters of the ADA “should not dictate a 

conclusion that, absent greater specificity, we should simply assume that a single 

word in § 12133 ends all inquiry.” As discussed above, the inquiry does, in fact, 

turn on a single word. Accordingly, it is clear that the Attorney General is not a 

“person alleging discrimination” under Title II. 

Notably, however, the United States does not argue that the Attorney 

General is a “person alleging discrimination.” The United States instead argues 

that “Title II provides to ‘persons’ alleging discrimination the ‘remedies, 

procedures, and rights’—including the prospect of Attorney General 

enforcement—that are provided to persons under the Rehabilitation Act and Title 

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VI.” The majority agrees with the United States: “Focusing solely on the word 

‘person’ and the difference in the language of enforcement provisions within the 

ADA ignores” the presumption that “Congress legislated in light of existing 

remedial structures.” But “[f]ocusing solely on the word ‘person’” is precisely 

where this case should begin and end. Because the Attorney General of the United 

States—on behalf of the United States itself and not on behalf of any individuals 

served by the State of Florida—filed suit in this case, it is the United States that

must have a cause of action to enforce Title II. And that determination necessarily 

depends on whether the Attorney General is a “person alleging discrimination” 

under the text of Title II. Because he is not such a person, the Attorney General 

has none of the “rights, procedures, and remedies” available under the 

Rehabilitation Act and Title VI. Accordingly, in this case, it is legally irrelevant 

what those “rights, procedures, and remedies” are because he simply does not 

possess those rights with respect to Title II. I do not agree that the multitude of 

cross-references to other federal regulatory schemes somehow provides a cause of 

action that does not otherwise exist in the text of Title II. 

The Attorney General also insists that “a holding that the Attorney General 

cannot continue to bring lawsuits to enforce Title II would seriously undermine 

federal enforcement of the ADA against public entities.” But we cannot expand 

the definition of “person” just because such an interpretation would “further the 

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purpose of the” statute. Return Mail, 2019 WL 2412904, at *10 n.11. “Statutes 

rarely embrace every possible measure that would further their general aims, and, 

absent other contextual indicators of Congress’ intent to include the Government in 

a statutory provision referring to a ‘person,’ the mere furtherance of the statute’s 

broad purpose does not overcome the presumption in this case.” Id. See Cooper, 

312 U.S. at 605 (“[I]t is not our function to engraft on a statute additions which we 

think the legislature logically might or should have made”). And Title II remains 

enforceable—even if the Attorney General does not have enforcement authority—

because, as the Attorney General acknowledges, a “person alleging discrimination”

may still enforce Title II through a private right of action.

Both the United States and the majority make much of the fact that “one of 

the purposes of the ADA was to ensure that the Federal Government ‘play[ed] a 

central role in enforcing the standards established in this chapter on behalf of 

individuals with disabilities.’” But, even if we find—as I do—that Title II does not 

allow the Attorney General to bring suit, the federal government will continue to 

“play a central role in enforcing the standards established in [the ADA] on behalf 

of individuals with disabilities.” 42 U.S.C. § 12101(b)(3). Title I and Title III of 

the ADA clearly and explicitly confer enforcement authority on the Attorney 

General. See 42 U.S.C. §§ 12117(a), 12188(b)(B). Accordingly, a holding that the 

Attorney General cannot sue the States to enforce Title II does not affect, in any 

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way, the Attorney General’s ability to enforce the other Titles of the ADA. Thus, 

the ADA’s broad statutory purpose rationally coexists with the holding that the 

Attorney General cannot file federal lawsuits to enforce Title II.

Because the text of Title II is determinative, and because that text does not 

provide the Attorney General with a cause of action to enforce Title II against the 

State of Florida, I would affirm the order of the district court. I respectfully 

dissent.

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