Garrett footnote allows ADA injunctive relief for state workers, Eighth Circuit rules.

In the first case to rely on a much-discussed footnote from the U.S. Supreme Court's opinion in Board of Trustees of University of Alabama v. Garrett, a federal appeals court affirmed that state employees may sue state officials for injunctive relief under Title I of the Americans with Disabilities Act (ADA). (Gibson v. Ark. Dep't of Correction, 265 F.3d 718 (8th Cir. 2001).) Title I prohibits employers of 25 or more workers from discriminating against qualified disabled workers.

Two days after that ruling was issued, a federal district court in Mississippi cited Gibson approvingly but dismissed ADA claims for injunctive relief and money damages brought by the United States on behalf of an individual. (United States v. Miss. Dep't of Pub. Safety, 159 F. Supp. 2d 374 (S.D. Miss. 2001).)

Both courts interpreted the Garrett footnote to allow injunctive relief for state workers, but the Mississippi court denied such relief on narrow procedural grounds. Luther Sutter of Little Rock, Arkansas, who represented the plaintiffs in Gibson, called the Mississippi ruling "a bad decision."

In Garrett, the Court held that state workers may not sue their employers for money damages under Title I of the ADA because Congress does not have the power to abrogate the states' Eleventh Amendment sovereign immunity from such suits. (531 U.S. 356 (2001).)

But in footnote nine, Chief Justice William Rehnquist wrote, "Our holding here ... does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the states. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young."

Judge Cynthia Holcomb Hall, writing for the Eighth Circuit in Gibson, explained that the 1908 doctrine of Ex parte Young "creates a legal fiction: A state official stops being a state official when he does something contrary to federal law" and is thus no longer entitled to the state's immunity from suit for injunctive relief.

Hall called the Garrett footnote "unambiguous" in reversing the dismissal of claims for injunctive relief brought by Linda Gibson, a correctional employee, and Larry Brown, an employee of the state police. Gibson alleged that she had not received a promotion due to a disability caused by an on-the-job injury, and Brown sought reinstatement after he was discharged because of a lifting restriction.

Edward Kramer of Cleveland, chair of ATLA's Employment Rights Section, said he welcomes the decision.

"In this day and age, when the Supreme Court is making some radical departures in the area of sovereign immunity--even overruling established precedent--it's good to know that courts still follow Ex parte Young," he said.

Sutter believes the ruling will be most significant for cases brought under Title II of the ADA, especially nursing home cases. Title II prohibits state and local governments from discriminating against the disabled in the provision of services.

He said that the Supreme Court's decision in Olmstead v. L.C. requires that states provide services to the disabled in "the most integrated setting" appropriate to their needs. (527 U.S. 581 (1999).) This means that, to the extent possible, disabled people should be able to interact with nondisabled people in a community setting.

But instead, Sutter said, many states inappropriately place disabled people in nursing homes: "In Arkansas, for example, 30 percent to 40 percent of all nursing home residents don't need to be there." Gibson's rationale applies to these cases, Sutter said. "Improperly placed residents will be able to obtain injunctive relief, getting them out of nursing homes and receiving community-based services."

Arkansas's petition for rehearing en banc in Gibson was denied on October 16, and the case has been remanded. Sutter said the plaintiffs will "more likely than not" receive the requested injunctions. Kramer added, "This case is significant enough, and the Supreme Court has been so active in this area, that it would not be at all surprising if the state were to petition for certiorari."

In the Mississippi case, the United States sought monetary and injunctive relief on behalf of Ronnie Collins, who was discharged from the state's highway patrol allegedly due to his diabetes. Judge William Barbour Jr. affirmed the Ex parte Young doctrine, but dismissed the request for injunctive relief because the government did not name any individual state official. The claim alleged only that the state agency had violated Collins's rights. Ex parte Young, Barbour wrote, nullifies the defense of sovereign immunity only when an injunction is sought "against named state officials for a violation of federal law."

He also dismissed the government's claim for damages because it was brought under the ADA's incorporation of [section] 706 of Title VII of the 1964 Civil Rights Act. This section was designed to vindicate individual instances of discrimination, and therefore, Barbour wrote, the government had "stepped into the shoes of a private individual" and "had no more power to sue a state than the individual it represents." Barbour contrasted the claim to actions brought under [section] 707, designed to remedy "a pattern of intentional discrimination."

Kramer said he was not surprised that a court would recognize Ex parte Young yet deny claims because of procedural defects. Sutter called the decision a clear case of "conservative judicial activism" and added that "it will be reversed, without a doubt."