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Arce v. Louisiana State

United States District Court, E.D. Louisiana

November 16, 2017


         SECTION I



         When Nelson and Lazaro Arce decided to challenge the Louisiana criminal justice system's treatment of the deaf, the Court doubts that they anticipated having to navigate through two of the murkiest waters in American law: federalism and separation of powers. Yet this case raises weighty questions about the federal government's authority to provide private citizens with the power to haul a State into federal court without its consent, and about the powers of executive branch agencies to authoritatively interpret federal statutes-and thus requires nothing less than a deep plunge into both pools.

         The State of Louisiana, through the Department of Public Safety and Corrections (“Louisiana”), moves for dismissal of Lazaro Arce's claims against it on the ground that neither Title II of the Americans with Disabilities Act (“Title II”) nor § 504 of the Rehabilitation Act of 1973 (“§ 504”) provides a cause of action based on associational discrimination.[1] Louisiana also requests dismissal of plaintiffs' Title II claim on behalf of Nelson as barred by sovereign immunity-a request that the Court construes as a motion to dismiss for lack of subject matter jurisdiction.[2] See Cantu Serv., Inc. v. Roberie, 535 Fed. App'x 342, 346 n.3 (5th Cir. 2013). Plaintiffs oppose both moves.[3]

         After considering the parties' submissions and the applicable law, the Court concludes that Lazaro's claims against Louisiana warrant dismissal and that plaintiffs' Title II claim on behalf of Nelson may proceed.


         According to plaintiffs, Nelson Arce (“Nelson”) was a deaf individual whose “express, preferred, and most effective means of communication” was American Sign Language (“ASL”).[4] Nelson's proficiency in written English was allegedly “limited.”[5]Lazaro Arce (“Lazaro”) is Nelson's father.[6]

         On February 9, 2015, Judge Michael Mentz of the Twenty Fourth Judicial District Court in Jefferson Parish[7] sentenced Nelson to two years of active probation and two years of inactive probation for a drug-related offense.[8] As a condition of his probation, Judge Mentz ordered Nelson to enter and complete a Louisiana-approved in-house substance abuse treatment program, and required Nelson to meet regularly with his probation officer.[9]

         Plaintiffs allege that Nelson's probation officer was aware that Nelson required a sign language interpreter to effectively communicate, but never provided an ASL interpreter during her meetings with Nelson.[10] Despite Nelson and Lazaro's alleged “repeated requests” for a qualified interpreter-one who could translate legal terminology and concepts[11]-the probation officer relied on Lazaro to interpret for Nelson.[12]

         Because his probation officer did not provide a qualified interpreter at their meetings, Nelson was allegedly unaware of the full terms and conditions of his probation. Thus, he did not know that “leaving [Louisiana] to attend drug treatment as ordered by [Judge Mentz] was a violation of his probation.”[13]

         When Nelson's probation officer learned that Nelson had enrolled in a California-based in-patient drug treatment program, she filed a motion to revoke Nelson's probation.[14] Judge Mentz granted the motion and sentenced Nelson to 90 days in the Jefferson Parish Correction Center (“JPCC”).[15] Nelson was then incarcerated at JPCC from December 8, 2015, until March 7, 2016, during which time JPCC inmates were allegedly entitled to two thirty-minute telephone conversations per day.[16] JPCC did not have video phones, but did have a teletypewriter (“TTY”), [17]which is a device that enables deaf individuals to communicate by telephone.[18]

         According to plaintiffs, JPCC officials either denied Nelson access to the TTY machine or provided him access only once per day on a number of occasions.[19] All the while, other JPCC inmates regularly received two thirty-minute telephone conversations per day.[20]

         Further, JPCC officials allegedly penalized Nelson twice during his incarceration for violating the rules contained in “The Inmate Handbook” (“Handbook”), which details the behavioral expectations for inmates incarcerated at JPCC.[21] Despite an alleged request by Lazaro that a qualified interpreter communicate the Handbook's contents to Nelson in ASL, Nelson never received an ASL interpretation of the Handbook and thus did not understand the Handbook's rules and regulations.[22] Plaintiffs allege that Nelson never learned which rule he violated on one of the occasions that he was punished.[23]

         Nelson was released from JPCC on March 7, 2016, and resumed meeting with his probation officer.[24] Nelson's probation officer continued to attempt to communicate with Nelson either through Lazaro's interpretations or written English.[25] The probation officer allegedly suggested that it was Nelson's responsibility to secure a qualified interpreter for their meetings if he wanted one.[26]

         In response to these events, Nelson and Lazaro brought this lawsuit against numerous defendants, including Louisiana, alleging violations of Title II and § 504, and seeking both injunctive relief and money damages. Since Nelson and Lazaro's initiation of the case, the Court has dismissed the claims against Jefferson Parish, [27]as well as the claims for injunctive relief.[28] Moreover, in light of Nelson's death on May 9, 2017, [29] the Court permitted Ana Christine Shelton (“Shelton”) to be substituted in Nelson's place in her capacity as the natural tutrix of Nelson's two surviving minor children and as the administratrix of Nelson's estate.[30]



         Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an action where the court lacks subject matter jurisdiction over the action. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).

         Any party may object to the court's subject matter jurisdiction “at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). So too may the court raise the issue on its own initiative. Id. Indeed, the court has an “independent obligation” to ensure in every case that subject matter jurisdiction exists. Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). If the court determines that subject matter jurisdiction over an action is lacking, then the court must dismiss the action. Arbaugh, 546 U.S. at 514; see also Fed. R. Civ. P. 12(h)(3).

         A court may dismiss an action for lack of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Once the defendant has questioned the court's subject matter jurisdiction, the plaintiff bears the burden of “proving by a preponderance of the evidence that the trial court does” possess the requisite jurisdiction to hear the case. Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).

         Where “a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). After all, “[f]or a court to pronounce upon [the merits] when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998).


         Under Rule 12(c) of the Federal Rules of Civil Procedure, a party may move for judgment on the pleadings once the pleadings are closed, as long as the party moves “early enough not to delay trial.” “A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); see also Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007) (applying Rule 12(b)(6) case law in the Rule 12(c) context).

         Thus, Rule 12(c)-like Rule 12(b)(6)-permits a court to dismiss a complaint, or any part of it, where a plaintiff has not set forth well-pleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's factual allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).

         A facially plausible claim is one where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the court to infer more than the mere possibility of misconduct, ” then “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original).

         In evaluating a Rule 12(c) motion, a court-as in the Rule 12(b)(6) context- limits its review “to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). In assessing the complaint, the Court must accept all well-pleaded factual allegations as true and liberally construe all such allegations in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). Where “the complaint ‘on its face show[s] a bar to relief, '” then dismissal is the appropriate course. Cutrer v. McMillan, 308 Fed. App'x. 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).


         Louisiana moves for dismissal of plaintiffs' Title II claims on the basis of sovereign immunity.[31] Moreover, Louisiana moves for judgment on the pleadings as to all of Lazaro's claims.[32]

         Resolution of the sovereign immunity question will involve addressing the viability of Lazaro's Title II claims. The Court therefore will structure its analysis around the issue of sovereign immunity.


         The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Despite the Eleventh Amendment's language targeting discrete categories of Article III diversity jurisdiction, the Supreme Court has fashioned a doctrine of Eleventh Amendment sovereign immunity defined by reference to “the Constitution's structure, its history, and the authoritative interpretations by this Court.” Alden v. Maine, 527 U.S. 706, 713 (1999); see also Hans v. Louisiana, 134 U.S. 1, 13 (1890); cf. Meyers ex rel. Benzing v. Tex., 410 F.3d 236, 240-41 (5th Cir. 2005) (“‘Eleventh Amendment immunity' is a misnomer, . . . because that immunity is really an aspect of the Supreme Court's concept of state sovereign immunity and is neither derived from nor limited by the Eleventh Amendment.”).

         Sovereign immunity operates as “a constitutional limitation on the federal judicial power.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). However, unlike other aspects of the federal courts' subject matter jurisdiction, sovereign immunity is waivable: “a State may consent to suit against it in federal court.”[33] Id. at 99.

         In addition, Congress may abrogate State sovereign immunity when exercising at least some of its constitutional powers. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that Congress has the power to abrogate State sovereign immunity under § 5 of the Fourteenth Amendment); but see Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 72 (1996) (holding that Congress does not have the power to abrogate State sovereign immunity under the Indian Commerce Clause). Abrogation requires “an unequivocal expression of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several States.'” Pennhurst, 465 U.S. at 99. “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985), superseded by An Act to Extend and Improve the Rehabilitation Act of 1973, Pub. L. 99-506, 100 Stat. 1807 (1986). If Congress wants to subject the several States to federal jurisdiction, then “it must do so specifically.”[34] Id.


         The ADA is “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III).” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).

         Importantly for present purposes, Congress “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment . . ., in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b)(4). To that end, the ADA declares that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation” of the ADA. Id. § 12202. In 2001, the Fifth Circuit held that this provision-although expressing Congress's clear intent to abrogate State sovereign immunity-did not validly do so with respect to Title II. Reickenbacker v. Foster, 274 F.3d 974, 975 (5th Cir. 2001), abrogated by Tennessee v. Lane, 546 U.S. 151 (2004).

         That holding, however, was itself abrogated by the Supreme Court. See United States v. Georgia, 546 U.S. 151 (2006); Lane, 541 U.S. at 533-34. In other words, Congress did validly abrogate State sovereign immunity under Title II-at least in some cases:

In United States v. Georgia, the Supreme Court established a three-part test for addressing whether Title II validly abrogates [S]tate sovereign immunity in a given case. A court should consider “which aspects of the State's alleged conduct violated Title II” and then determine “to what extent such misconduct also violated the Fourteenth Amendment.” If the State's conduct violated both Title II and the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. If the State's conduct violated Title II but did not violate the Fourteenth Amendment, the court must then determine “whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.”

Hale v. King, 642 F.3d 492, 497-98 (5th Cir. 2011) (quoting Georgia, 546 U.S. at 159).

         Thus, a court first subjects a plaintiff's allegations to the familiar Rule 12(b)(6) standard. Id. at 498. Where the allegations state a claim under Title II, but not under the Fourteenth Amendment, a court must then consider whether Congress's abrogation of State sovereign immunity in a particular case exhibits “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”[35] City of Boerne v. Flores, 521 U.S. 507, 520 (1997); see also Wells v. Thaler, 460 Fed. App'x 303, 311 (5th Cir. 2012) (per curiam).


         The Court will first consider “which aspects of the State's alleged conduct violated Title II.”[36] Hale, 642 F.3d at 498 (quoting Georgia, 546 U.S. at 159) (internal quotation marks omitted). As a general matter, a viable Title II requires a plaintiff to allege “(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.” Id. at 499; see also 42 U.S.C. § 12132.

         As far as which aspects of Louisiana's alleged conduct toward Nelson violated Title II for purposes of the Georgia analysis, the parties are in unison: the decision by Nelson's probation officer not to procure the services of a qualified ASL interpreter for her meetings with Nelson.[37] When it comes to which aspects of Louisiana's alleged conduct toward Lazaro violated Title II, however, the parties could not be farther apart.

         Lazaro-who is not deaf or otherwise alleged to have a “qualifying disability”- offers a theory of Title II (and § 504) liability based on the concept of associational discrimination. In a nutshell, Lazaro alleges that Louisiana discriminated against him on the basis of his association with Nelson and because of Nelson's “qualifying disability.”[38]

         For its part, Louisiana argues that Title II (and § 504) does not permit associational discrimination claims, relying almost exclusively on a recent opinion out of the Northern District of Georgia.[39] Acknowledging that a regulation promulgated by the Attorney General to implement Title II recognizes such claims, [40]see 28 C.F.R. § 35.130(g), Louisiana contends that the regulation is unlawful.[41]Finally, in the alternative, Louisiana argues that Lazaro has failed to state a claim of associational discrimination against Louisiana under Title II (or § 504).[42]

         Where, as here, an executive agency's regulation interpreting a federal statute is called into question, the Supreme Court has instructed courts to analyze the interpretation's permissibility through the lens of what may amount to administrative law's most consequential-and controversial[43]-doctrine: Chevron.


         Under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), a court confronts two questions when reviewing an agency's regulation implementing a statute that it administers.[44] 467 U.S. at 842. “First, always, is the question whether Congress has directly spoken to the precise question at issue.” Id. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43.

         To discern congressional intent, courts often rely “solely on the language of the statute.” In re Settoon Towing, L.L.C., 859 F.3d 340, 351 (5th Cir. 2017). Indeed, “plain statutory language is the most instructive and reliable indicator of Congressional intent.” Martinez v. Mukasey, 519 F.3d 532, 543 (5th Cir. 2008); see also Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 283 (1996) (Scalia, J., concurring in part and concurring in the judgment) (“The text's the thing.”). Thus, “[i]f the statute's language is unambiguous, ” then the “plain language” controls “absent some resulting absurdity.” Id. at 345. Courts do not examine text outside of context, however; a statute is read “as a whole, ” and an interpreter must remain “mindful of the linguistic choices made by Congress.” Whatley v. Resolution Trust Co., 32 F.3d 905, 909 (5th Cir. 1994).

         Where a court concludes that “Congress has not directly addressed the precise question at issue, ” then it “does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Chevron, 467 U.S. at 843. “Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. “[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844.


         The Title II regulation challenged by Louisiana states: “A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.” 28 C.F.R. § 35:130(g). Whether this regulation is consistent with Title II is the question to which the Court will now turn.


         The Court will begin, as it must, with the statutory text. Title II provides that “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. Title II defines a “qualified individual with a disability” as “an individual with a disability who, with or without . . . the provision of auxiliary aids and services, [among other things, ] meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2).

         In other words, Title II's nondiscrimination provision protects a specific and discrete class of individuals against discrimination by public entities: those with a disability. Discrimination against a nondisabled individual by a public entity due to his association with a disabled individual does not run afoul of the provision's plain language. See A Helping Hand, LLC v. Baltimore Cty., Md., 515 F.3d 356, 363 (4th Cir. 2008) (recognizing that “Title II contains no express right to be free from discrimination because of association with qualified individuals with disabilities”).

         Title II further provides that its “remedies, procedures, and rights” are available to “any person alleging discrimination on the basis of disability in violation of” Title II's nondiscrimination provision. Id. § 12133. Of course, only discrimination by a public entity against a “qualified individual with a disability” may result in a violation of said provision. Id. § 12132; see Lightbourn v. Cty. of El Paso, Tex., 118 F.3d 421, 428 (5th Cir. 1997) (interpreting Title II's nondiscrimination provision to require Title II plaintiffs to demonstrate, among other things, “that they are qualified individuals within the meaning of” Title II). Thus, a nondisabled person-who is textually foreclosed from personally experiencing a form of discrimination that violates Title II's nondiscrimination provision-would seem equally foreclosed from pursuing Title II's “remedies, procedures, and rights.”[45] 42 U.S.C. § 12133.

         Notwithstanding, a number of circuits have interpreted Title II to permit at least some organizations (or their operators) that experience discrimination by public entities due to their association with “qualifying individual[s] with a disability” to seek redress under Title II. See Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d. Cir. 1997) (concluding that a drug- and alcohol-rehabilitation treatment center has standing to sue under Title II), recognized as superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001); Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 405-07 (3rd Cir. 2005) (same for the operator of a methadone clinic); A Helping Hand, 515 F.3d at 363 (same for the operator of a methadone clinic); see also MX Grp., Inc. v. City of Covington, 293 F.3d 326, 335 (6th Cir. 2002) (adopting the relevant reasoning in Innovative Health as “persuasive” in the context of an entity seeking to open a methadone clinic). In reaching this conclusion, these courts-like plaintiffs[46]-hone in on the phrase “any person alleging discrimination on the basis of disability, ” with a particular emphasis on “any person.” 42 U.S.C. § 12133; see also 1 U.S.C. § 1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words ‘person' and ‘whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals . . . .”).

         “Read naturally, the word ‘any' has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.'” United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster's Third New International Dictionary 97 (1976)). Notwithstanding a word's isolated meaning, however, one does not interpret a text with any degree of accuracy by limiting the interpretive enterprise to myopic examination of each of the text's individual constituent words. See Roberts v. Sea-Land Serv., Inc., 566 U.S. 93, 101 (2012) (“Statutory language . . . cannot be construed in a vacuum.” (internal quotation marks omitted)). Instead, one must heed the particular combination of words selected by the author, whether an individual or group of individuals. In short, context matters. See Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007) (observing that “broad language is not limitless” and that “a liberal construction nonetheless can find limits in a text's language, context, history, and purposes”); Food & Drug Admin. V. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks omitted)).

         With two eyes on context, the breadth of “any” as used in Title II seems as clear as crystal: “any” is explicitly limited to “person[s] alleging discrimination on the basis of disability in violation of” Title II's nondiscrimination provision.” 42 U.S.C. § 12133 (emphasis added); cf. Gonzales, 520 U.S. at 5 (interpreting 18 U.S.C. § 924(c)(1), and distinguishing between a phrase that explicitly limits the breadth of the word “any” and a phrase that does not). Thus, the plain language of Title II seems to reserve the keys to the remedial kingdom for plaintiffs alleging both 1) “discrimination on the basis of disability” and 2) “discrimination . . . in violation of” Title II's nondiscrimination provision.” 42 U.S.C. § 12133. While the former requirement is broad enough to encompass associational discrimination-which is based on disability-the latter requirement is not.

         Looking beyond the four corners of Title II's text, some circuits have also considered Title II's legislative history as relevant to interpreting the statute's scope. See, e.g., Innovative Health, 117 F.3d at 47; A Helping Hand, 515 F.3d at 364. This nontextual evidence suggests that at least some of the legislators involved in drafting Title II intended that Title II cover all forms of discrimination prohibited under Titles I and III of the ADA. See, e.g., H.R. Rep. 101-485(II), at 84 (May 15, 1990). Titles I and III's nondiscrimination provision-both of which prohibit discrimination against individuals “on the basis of disability, ” as opposed to individuals “with a disability”- each explicitly prohibit discrimination by association.[47] See 42 U.S.C. § 12111(a), (b)(4) (Title I); id. § 12182(a), (b)(1)(E) (Title III); cf. Id. §12132 (Title II).

         Yet despite what may be gleamed from congressional records that were not subjected to the rigors of bicameralism and presentment, see U.S. Const. art. I, § 7 cl. 1-2, “[w]here the statute is so lucid, we need not look to the legislative history for further guidance.” Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a “straightforward statutory command” that the Court need only follow. Gonzales, 520 U.S. at 6.

         Further, even accepting as sound the conclusion that at least some organizations may sue under Title II, the organizations involved as plaintiffs in the relevant cases provided treatment services to individual persons suffering from alcoholism and drug addiction. See Innovative Health, 117 F.3d at 37; Addiction Specialists, 411 F.3d at 399; A Helping Hand, 515 F.3d at 356; MX Grp., 293 F.3d at 326. Such individuals may-indeed, some unquestionably do-fall within the protective auspices of the ADA. See 42 U.S.C. § 12102(1) (defining the term “disability” in the ADA); Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002) (observing that alcoholism and drug addiction constitute “impairment[s]” under the ADA's definition of “disability”), superseded by statute on other grounds, ADA Amendments of 2008, Pub. L. No. 110-325, 122 Stat. 3553; MX Grp., 293 F.3d at 336 (same); see also Title II Technical Assistance Manual, The American with Disabilities Act,

         In this case, however, a nondisabled individual-Lazaro-is asserting a claim of associational discrimination under Title II. This breed of associational discrimination claim seems materially distinct from such claims asserted by the organizations. After all, the discrimination that these organizations allegedly experienced at the hands of public entities-such as the use of local zoning laws to prevent a methadone clinic from operating within city limits, MX Grp., 293 F.3d at 328-likewise discriminated against a class of Title II-protected disabled individuals by erecting barriers to access to treatment facilities for such individuals “by reason of [their] disability, ” see 42 U.S.C. § 12132.

         Thus, blessing these organizations' associational discrimination claims under Title II was a direct means to vindicate the rights of “individual[s] with a disability.” Id. An individual associational discrimination claim may also vindicate disabled individuals' rights, but the vindication seems more attenuated. Individual claims seem primarily designed to vindicate the interest of the individual asserting it-and as a nondisabled individual, Lazaro's interests seem beyond Title II's concern.

         At least one circuit seems to have endorsed the availability under Title II of individual associational discrimination claims of the type brought by Lazaro. In McCullum v. Orlando Regional Healthcare System, Inc., 768 F.3d 1135 (11th Cir. 2014), nondisabled individuals brought associational discrimination claims against two hospitals under both Title II and Title III of the ADA. See 768 F.3d at 1140; see also McCullum v. Orlando Reg'l Healthcare Sys., Inc., No. 11-1387, R. Doc. No. 1-2 (M.D. Fla. Aug. 18, 2011) (complaint). The district court dismissed the claims. See McCullum, 768 F.3d at 1141; see also McCullum, No. 11-1387, R. Doc. No. 24 (M.D. Fla. Nov. 8, 2011) (Presnell, J.) (order).

         On appeal, the Eleventh Circuit first opined that “[i]t is widely accepted that under both the [Rehabilitation Act of 1973] and the ADA, non-disabled individuals have standing to bring claims when they are injured because of their association with a disabled person.” McCullum, 768 F.3d at 1142. With respect to the ADA, the Eleventh Circuit exclusively supported this proposition with citations to the same Title II cases previously explored by the Court: cases involving organizations that provide services to individuals protected by Title II. See Id. at 1142 (citing Innovative Health, 117 F.3d at 46-48; Addiction Specialists, 411 F.3d at 405-09; A Helping Hand, 515 F.3d at 362-64; MX Grp., 293 F.3d at 333-35).

         The Eleventh Circuit then went on to identify Title III's explicit prohibition on associational discrimination as “[t]he section of the ADA conferring standing on a non-disabled party.” Id. When interpreting this provision of Title III as to nondisabled individuals, however, the court again referenced cases in which other circuits recognized organizational standing to sue under Title II. Id. (citing A Helping Hand, 515 F.3d at 358-59, 363-64; MX Grp., 293 F.3d at 329-31, 333-35).

         As far as its analysis of the ADA, then, the Eleventh Circuit in McCullum may be off the mark in several respects. First, McCullum seems to conflate the ADA's various titles, and in the process does not consider potentially material linguistic and structural differences among them. Likewise, McCullum's use of case law bearing on associational discrimination claims does not distinguish among the ADA's titles, and does not differentiate between organizations versus nondisabled individuals. Based on these shortcomings, the Court declines to follow McCullum's conclusions as to the ADA.

         In the end, the text of Title II does not appear to make room for associational discrimination claims. The regulation recognizing such claims, then, looks as if it rests on a fragile foundation.

         However, in law-as in life-looks can be deceiving.


         While Louisiana's argument about the plain meaning of Title II is “strong, ” what “may seem plain when viewed in isolation” can become “untenable in light of [the statute] as a whole.” King v. Burwell, 135 S.Ct. 2480, 2495 (2015) (internal quotation marks omitted) (alteration in original). Such is the case here.

         That is because “Congress has instructed courts that ‘nothing in [the ADA] shall be construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to such title.'” Frame v. City of Arlington, 657 F.3d 215, 223-24 (5th Cir. 2011) (en banc) (quoting 42 U.S.C. § 12201(a)) (alterations in original). Thus, “the ADA actually prohibits courts from construing Title II to apply a lesser standard than” § 504 and regulations promulgated to implement it. Id. at 228 (emphasis added). If § 504 permits individual associational discrimination claims, then Title II must also permit such claims, the plain text of Title II notwithstanding.[48]Cf. ...

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