Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 1 of 47

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
SHELYNDRA BROWN, by her mother and next friend, JESSE O'NEIL; RONALD ADSIDE, by his father and next friend, CLAUDE F. ADSIDE; HENRY SIMS by his mother and next friend, JEANETTE HARDIN; MERVYN MORELL, by his father and next friend, ISADRO MORELL; LYNDA FAYE JOHNSON, by her guardian advocate and next friend, SYLVIA SCOTT; KERRY MANGHAM; and THE ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC.;
Plaintiffs,
V.
LAWTON CHILES, in his official capacity as Governor of the State of Florida; EDWARD FEAVER, in his official capacity as Secretary, STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES; TAMARA ALLEN, in her official capacity as Secretary, STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF VOCATIONAL REHABILITATION; CHARLES KIMBER, in his official capacity as Deputy Secretary for the DEPARTMENT OF CHILDREN AND FAM!LIES; M!eHA"!L MAYFIELD, in his official capacity as Acting Superintendent, LANDMARK LEARNING CENTER; TRACY CLEMMONS in his official capacity as Superintendent, SUNLAND CENTER at MARIANNA; MICHAEL MURPHY in his official capacity as Superintendent, TACACHALE SUNLAND; ROBERT MORIN in his official capacity as Superintendent, GULF COAST CENTER; ANITA BOCK, in her official capacity as District Administrator for the Department of Children and Families in District XI; JOHN AWAD in his official capacity as District Administrator for the Department of Children and Families in District II; ESTER TIBBS in her official capacity as District Administrator for the Department of Children and Families in District III; FRANCES GIBBONS in his official capacity as District Administrator for the Department of Children and Families in District VIII; DOUG COOK, in his official capacity as Director of the Agency for Health Care Administration for the State of Florida; and RICHARD T. LUTZ, in his official capacity as Director of Florida Medicaid,
Defendants

98-673
CtY· HOE\fEl.l!R

CLASS ACTION COMPLAINT

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PRELIMINARY STATEMENT 1. This action is brought by six persons who are confined to Florida's Developmental State Institutions for persons with developmental disabilities ("DSis"). They bring this action on behalf of themselves and all individuals who currently are, or in the future will be confined to DSis. This action is brought also by the Advocacy Center for Persons with Disabilities, Inc., in order to protect, and advocate for, those persons who are or in the future will be confined to DSis. 2. The Department of Children and Families owns and operates four state institutions housing for persons with developmental disabilities: LANDMARK LEARNING CENTER ( 11 LANDMARK 11 ) , SUNLAND CENTER AT MARIANNA ( 11 MARIANNA 11 ) , TACACHALE SUNLAND ( "TACACHALE 11 ), AND GULF COAST CENTER ( 11 GULF COAST 11 ) • Approximately 1439 individuals are confined and segregated in these state institutions. 3. Plaintiffs and class members have historically been and continue to be warehoused at these DSis, receiving little or no habilitation. Plaintiffs and class members spend most of their time within the institution where they have little or no contact with persons without disabilities, other than staff. The living and environmental conditions are inhumane, unsafe, unsanitary and harmful. As a result of harmful conditions, many plaintiffs and class members are injured and some even die.
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JURISDICTION 4. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1343(3) and (4), and 42 U.S.C. § 1983. This Court is authorized to order the requested relief by these statutes and by 28 §§ 2201 and 2202. 5. This action arises under 42 U.S.C. § 12131, et seq., 29 U.S.C. § 794, and 42 U.S.C. § 1983.
VENUE
6. Venue is proper in this Court pursuant to 28 u.s.c. §§
1391(b) (1) and (b) (2) because (i) all defendants reside in districts in Florida and defendants Michael Mayfield and Anita Bock reside in the Southern District of Florida and (ii) the cause of action arises within the Southern District of Florida as to Plaintiffs 1, 2, and 3.
PLAINTIFFS 7. SHELYNDRA BROWN, age 32, has been confined to LANDMARK for the past six years. She has been diagnosed with mild mental retardation and a seizure disorder, inter alia. In October, 1997, she was severely beaten at her segregated work program by another individual with a developmental disability. He pushed her from her wheelchair on the floor and struck her repeatedly on her face with a part of the wheelchair. Her jaw was shattered, and her arm was broken. She was sent to a local hospital to the intensive care unit. Before her confinement to Landmark, SHELYNDRA BROWN could ambulate; now she is no longer able to walk and must instead use a wheelchair for mobility. SHELYNDRA BROWN
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lived at home with her mother until she was sixteen years old. Her mother wanted to keep her daughter at home, but did not receive from Defendants the supports and services which would enable her to do so. She receives Medicaid benefits. She brings this action by her mother and next friend Jesse O'Neill.
8. RONALD ADSIDE, age 42, has been confined to Landmark Learning Center for thirty-two years, since he was ten years old. He has been diagnosed with mental retardation and speech disorder, inter alia. DEFENDANTS have recommended that he be moved to a group home in the community, but they have not provided him with such a group home nor with necessary supports and services. He receives Medicaid benefits. He brings this action by his father, Claude Adside.
9. HENRY SIMS, age 39, has been confined to LANDMARK for twenty-eight years. He was eleven years old when state officials first confined him to LANDMARK. He has been diagnosed with mental retardation, deafness, blindness, a speech disorder, and congenital heart defect, inter alia. Defendants and their predecessors did not give his family supports and services to enable them to care for him at home. Defendants have recommended that HENRY SIMS be moved to a group home in the community, but defendants have not provided him with a group home nor with the necessary supports and services. He receives Medicaid benefits. He brings this action by his mother, Jeanette Hardin.
10. MERVYN MORELL, age 31, has been at GULF COAST since 1991. Until that time, he had lived with his family. Defendants
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did not provide his family with adequate supports and services to maintain him at home nor did they otherwise meet his needs in the community. He was confined to GULF COAST because his family was not aware of any other options. MERVYN MORELL has been diagnosed with mental retardation, legal blindness and deafness. He has self-abusive behaviors, which have not been addressed. As a result of those behaviors, he has suffered serious and permanent harm to his face and body since he was confined to GULF COAST. He receives Medicaid benefits. He brings this action by his father, Isadro Morell.
11. LINDA FAYE JOHNSON, age 45, has been confined to TACACHALE SUNLAND since March 14, 1955, when she was two years old. Defendants failed to provide adequate supports and services in the community. She is a Medicaid recipient. She brings this action by her guardian advocate and her next friend, SYLVIA SCOTT.
12. KERRY MANGHAM, age 28, has been confined to MARIANNA since October, 1987. Defendants confined him to Marianna after he had been confined at St. Vincent's Hospital psychiatric unit in Jacksonville. Defendants failed to fund a home with adequate services so that he could remain in the community. He is a legally competent adult and has continually expressed his desire to live in an apartment of his own in the community of Marianna. Defendants have failed to provide him with the necessary services and supports to live in the community. He receives Medicaid benefits. He brings this action in his own capacity.
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13. The Advocacy Center for Persons With Disabilities, Inc. ("Advocacy Center 11 ) provides protection and advocacy services to people with developmental disabilities pursuant to the Developmental Disabilities Act, 42 U.S.C. § 6042, and to people with mental illness pursuant to 42 U.S.C. § 10801, et seq. In order to fulfill its responsibility to protect and advocate for persons with developmental and mental disabilities, the Advocacy Center has authority to pursue legal remedies.
DEFENDANTS 14. Defendant LAWTON CHILES is the Governor of the State of Florida and of the United States of America. Under Art. IV, Sections 1 & 6, Fla. Const., he is the state's chief executive officer. CHILES has the responsibility to ensure that the agencies of the Executive Branch of the State, including the Department for Children and Families (DCF) and the Agency for Health Care Administration (AHCA) , act in full compliance with the Constitution and the laws of the United States. The Governor is sued in his official capacity. 15. Defendant EDWARD FEAVER is Secretary of DCF. Under Fla. Stat. Section 20.19(c) (1987), he has administrative responsibility for and control of the administration of all services for people with developmental disabilities who are residents of the State of Florida, including people with developmental disabilities who are confined to the DSis. He is sued in his official capacity.
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16. Defendant CHARLES KIMBER has administrative responsibility for and control of the administration of all services to people with developmental disabilities who are residents of the State of Florida, including people with developmental disabilities who are confined to the DSis and for integrating persons with developmental disabilities into the community in the most integrative settings pursuant to state and federal law. He is sued in his official capacity.
17. Defendant TAMARA ALLEN is the Secretary for the Department of Labor and Employment Security, Division of Vocational Rehabilitation. TAMARA ALLEN has the responsibility for prioritizing services to persons with the most severe disabilities, such as persons who are at DSis. She is sued in her official capacity.
18. Defendant MICHAEL MAYFIELD is Acting Superintendent of LANDMARK. As such, he has day-to-day responsibility for and control of the operations of LANDMARK. He is sued in his official capacity.
19. Defendant MICHAEL MURPHY is Superintendent of TACACHALE. As such, he has day-to-day responsibility for and control of the operations of TACACHALE. He is sued in his official capacity.
20. Defendant TRACY CLEMMONS is Superintendent of MARIANNA. As such, he has day-to-day responsibility for and control of the operations of MARIANNA. He is sued in his official capacity.
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21. Defendant ROBERT MORIN is Superintendent of GULF COAST. As such, he has day-to-day responsibility for and control of the operations of GULF COAST. He is sued in his official capacity.
22. Defendant ANITA BOCK is the District Administrator for the DCF in District XI, in which LANDMARK is located. She is sued in her official capacity.
23. Defendant JOHN AWAD is the District Administrator for the DCF in District II, in which Marianna is located. He is sued in his official capacity.
24. Defendant ESTER TIBBS is the District Administrator for the DCF in District III, in which Tacachale is located. She is sued in his official capacity.
25. Defendant FRANCES GIBBONS is the District Administrator for the DCF in District VIII, in which Gulf Coast is located. She is sued in her official capacity.
26. Defendant DOUG COOK is the Director of the Agency for Health Care Administration. He is sued here in his official capacity. He is responsible for administering the Florida Medicaid program so that it complies with federal law.
27. Defendant RICHARDT. LUTZ is the Director of the Division of Medicaid of AHCA. He is sued here in his official capacity. He is responsible for the overall operation of Medicaid and is required to ensure that it complies with federal law.
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28. All defendants have at all relevant times acted under

color of state law and knew of or should have known of the

policies, practices, acts and conditions alleged.

CLASS ACTION ALLEGATIONS

29. Individual plaintiffs bring this action as a class

action pursuant to Fed. R. Civ. P. 23.

30. The class is defined as all persons who on or after

January 1, 1998 have resided, are residing or will reside at the

DSis, including all persons who have been transferred from DSis

to other settings, such as intermediate care facilities, group

homes or skilled nursing facilities but remain defendants'

responsibility; and all persons at risk of being sent to DSis.

31. The class consists of more than 1439 individuals. The

class is so numerous as to make joinder of all class members

impracticable. Further, it is impossible to ascertain the future

members of the class.

32. Questions of law and fact common to the class include,

but are not limited to, whether the defendants have deprived them

of:

a.

their right to be free from abuse and neglect;

b.

their right to humane treatment, including but

not limited to, a safe and sanitary physical

environment, adequate care, treatment, personal

dignity, nutrition, language and communication

services, adequate behavior management

programs, and medical care;

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c.

their right to adequate habilitation and

training to prevent regression, to maximize

their individual independence and to reach

their full potential;

d.

their right to effective developmental services

in the most integrated community setting

appropriate to their needs;

e.

their right to adequate vocational training and

opportunities for employment;

33. Named plaintiffs' claims are typical of the class they

seek to represent in that they are all residents of DSis who have

suffered and are currently suffering from one or more of the

violations of rights enumerated in this complaint.

34. Named plaintiffs will fairly and adequately protect and

represent the interests of the class members and are capable of

pursing this action.

35. Plaintiffs bring this action under Fed. R. Civ. P.

23(b) (2) because the defendants have acted and are acting on

grounds generally applicable to all members of the class, making

appropriate declaratory and injunctive relief concerning the

class as a whole.

STATEMENT OF FACTS

HISTORICAL BACKGROUND

36. In 1919, the Florida Legislature established its first

institution for individuals with developmental disabilities, the

Florida Farm Colony for the Epileptic and Feeble-Minded, located

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in Alachua County. One of the avowed purposes of the statute was "that these unfortunates may be prevented from reproducing their kind, and the various communities and the State at Large relieved from the heavy economic and moral losses arising by reason of their existence." 1919 Fla. Laws Ch. 7887.
37. The Florida Farm Colony was built in 1921. Today, it is known as TACACHALE, aka, Sunland Training Center at Gainesville. Tacachale is the largest of Florida's four public institutions for people with developmental disabilities. Tacachale is segregated and isolated; it is on the other side of the railroad tracks from the town.
38. Until the 1970s, children with developmental disabilities were considered "uneducable." Many were completely excluded from the public school system. For parents, the only alternative to caring for their children 24 hours a day, 365 days a year, was to confine their children in DSis.
39. Many individuals have spent most of their lives at DSis, because state officials confined them during the time of institutional segregation of individuals with developmental disabilities. Although today state law prohibits individuals under age 18 from being confined to DSis, state officials confined many named plaintiffs and class members to state institutions since they were young children. Many have grown to adulthood and even old age confined to institutions because they have never been provided with adequate supports and services in the community. For example, Plaintiff Lynda Faye Johnson was
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confined to Tacachale at age 2 in 1955; she has spent almost her whole life at Tacachale. Plaintiff Ronald Adside, now age 42, was confined to Landmark in 1965 when it first opened; he was ten at the time, and has never had an opportunity to live in the community. Henry Sims, now age 38, was confined to LANDMARK in 1970, at age 11; for the past twenty-seven years he has been confined there, and has not had any opportunity to live in the community.
THE DSI PROGRAM 40. Since 1976, defendants have received federal funds to operate the DSis through a federally-funded program under Title XIX of the Social Security Act (Medicaid) called Intermediate Care Facilities for the Mentally Retarded (ICF/MR), now known as Intermediate Care Facilities for the Developmentally Disabled (ICF/DD). In Florida, the federal government pays for approximately 55% of the cost of ICF/DD beds while the State of Florida pays the remaining 45%. 41. Today, the four DSis have a total population of 1439 individuals whose programs were licensed as ICF/DDs and 137 individuals whose programs are not licensed as ICF/DDs. Tacachale is the largest DSI, with 523 individuals, 468 in ICF/DD programs and 55 in non-ICF/DD programs. Marianna has 340 individuals, with 260 in ICF/DD programs and 80 in non-ICF/DD programs. Gulf Coast has 328 individuals, who are all in ICF/DD programs. Landmark has 240 individuals, with 238 in ICF/DD programs and 2 in non-ICF/DD programs.
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PLAINTIFFS SUFFER HARM FROM CONFINEMENT TO SEGREGATED INSTITUTIONS
42. The DSis are self-contained institutions. Day programs, recreational activities, social activities, educational activities and most medical care are provided in the same institution where people with developmental disabilities sleep and eat. Many people with developmental disabilities never leave the institution at all.
43. Defendants disregard plaintiffs' individual preferences. Plaintiffs are required to conform to an institutional schedule, which sets the time for them to wake, to shower, to eat, and to sleep. Plaintiffs are limited to congregate group activities.
44. Plaintiffs are denied privacy. Many bedrooms serve four or more people with developmental disabilities without any doors or walls to provide privacy. The bathrooms are designed to serve large groups of people with developmental disabilities.
PLAINTIFFS ARE HARMED BY DENIAL OF NECESSARY SUPPORTS AND SERVICES
45. Defendants provide plaintiffs with very little in the way of active treatment. Typically, people with developmental disabilities have nothing to do for most of their waking hours. This idleness causes significant behavior problems to develop. Many incidents of abuse and self-abuse occur when individuals are idle.
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46. A report by experts retained by Defendants' observed

that at Gulf Coast, the staff use "relatively weak, positive

teaching strategies to deal with severe behavior challenges in

settings that often promote and maintain challenging behavior."

The behavior plans were "very weak with respect to modifying

environments, changing living arrangements, daytime program

placements, etc. to better meet the wishes and needs of

individuals. The most blatant example was in the area of day

programs.

.many of the individuals seem to spend their days

involved in 'activity traps' that they are not [sic] neither

functional or interesting to them."

47. Staff who are on duty commonly ignore individuals with

developmental disabilities. They watch television, read

magazines, and play cards or talk with other staff, leaving the

people with developmental disabilities unattended and vulnerable

to abuse and self-abuse.

48. Plaintiffs are denied habilitation, which is the

teaching and training process required by persons with

developmental disabilities so that they can reach their potential

in physical, social and mental growth.

49. Virtually all persons with severe disabilities have the

capability, with proper education and training, to learn some

basic self-care skills: to participate in feeding, toileting,

mobility, and other bodily needs. Nearly all people with

developmental disabilities could, with reasonable, individualized

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instruction and adaptions, participate more in their self-help functions.
50. Active treatment is the formal process of training, treatment and care that must be delivered to each Medicaideligible resident of an ICF-DD. Active treatment is a professionally designed, consistently and aggressively implemented program of training, treatment and other services to enable each ICF/DD resident to function with the greatest selfdetermination and independence. 42 U.S.C. S 1396d(d); 42 C.F.R. S 483.440. Section 393.063{1) defines active treatment as "the provision of services by an interdisciplinary team necessary to maximize a client's individual independence or to prevent regression or loss of functional status."
51. Active treatment requires the development and implementation of an individualized program of intervention that is based upon and accountable to a comprehensive assessment of the individual needs of the resident and an individual habilitation plan (IHP).
52. Assessments for people with developmental disabilities are grossly inadequate.
53. Plans and programs remain the same from one year to another. They are not revised and updated in light of the person's changing needs.
54. In order to develop a proper habilitation plan, a person with a disability needs to participate, or to have a guardian, family member, advocate or friend assist them by
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participating in the development of their habilitation plan. Many class members who need assistance to participate in their habilitation plan do not have guardians, family members, advocates or friends to assist them.
55. The number of professional staff who work at the institutions is inadequate. Most of the professional staff work Monday to Friday on the day shift, with little in the way of professional coverage on evenings, nights and week-ends.
56. The professional staff who are employed at the institutions do not adequately monitor the delivery of the programs they develop for class members. There is no effective method to ensure quality and consistency of performance among direct care staff.
57. Direct care staff at the institutions are not adequately trained to carry out individual program plans and often do not know the content of those plans. They do not understand the needs of individuals with developmental disabilities nor the techniques needed to teach them functional skills. They do not know how to collect meaningful progress data.
58. Employees bath, groom and dress residents with little knowledge of implementing training programs. Staff often do not use any of the residents' Individual Habilitation Plan programs.
59. Accurate and meaningful data that can show progress, regression, or lack of change are not kept.
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60. The institutions lack the capability to deliver active treatment because the basic components of active treatment adequate professional staff, functioning interdisciplinary teams, adequate assessments, professionally-designed IHPs, and direct care staff trained and supervised in the delivery of each resident's plan do not exist.
61. Staff at the institutions fail to implement active treatment programs for people with developmental disabilities, especially those with severe disabilities and challenging behaviors.
62. Training programs at the DSis depart substantially from professional judgment, standards and practice. They are inappropriate to the learning needs of persons with severe intellectual deficits. Training programs do not teach functional skills. People with developmental disabilities are denied the opportunity to learn the skills for activities of daily living, such as tooth-brushing, cooking and dressing.
63. Many people with developmental disabilities are capable of going to the store, choosing and purchasing their food, cooking and serving meals and caring for their own living units, but they have no opportunity to do so. Instead, meals are served in an assembly-line process designed to feed large groups of people with developmental disabilities. People with developmental disabilities do not participate in preparing and cooking the meals. Meals are not used to teach appropriate
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social skills. Meals are often delivered cold and in an untimely manner.
64. Most people with developmental disabilities are not provided with adequate individualized adaptions to enable them to do things for themselves.
65. Many individuals who use mobility devices do not have individualized customization to meet their needs. Without customization, the individuals are placed at risk for injuries and contractures.
66. Defendants' failure to provide adequate physical and occupational therapies and related services results in a number of fractures/injuries to plaintiffs.
67. Nutritional management is of critical importance to people with developmental disabilities. DSI staff are not trained to feed persons with severe disabilities properly. Consequently, they fail to position people with developmental disabilities properly during meals, use appropriate feeding techniques, or effectively monitor people with developmental disabilities at meal time.
68. Communication services are a vital component of active treatment. If people with severe developmental disabilities are not provided with adequate intervention to address their speech and language needs, they will regress. The ability to communicate is essential for people with severe disabilities to have any control over their lives and to explain their medical
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problems and needs. Increased ability to communicate may reduce frustrations that result in challenging behaviors.
69. People with developmental disabilities do not receive the speech therapy they need to improve or maintain their ability to understand others and communicate their needs. Staff make little use of sign language although many people with developmental disabilities could benefit from learning and using sign language.
70. Defendants fail to remove communication barriers to enable class members to participate in public services, programs and activities.
71. Adaptive equipment, including augmentative communication devices, and other devices to enable people with developmental disabilities to communicate, is seldom provided to individuals at the DSis, and even when it is provided, it is seldom used.
72. The quality of life of persons there is unacceptable because there is no opportunity for learning, progress, participation in valued life activities, daily life style choices, privacy, safety, dignity and hope for improvement.
73. The consequences of defendants' failure to provide active treatment or to implement professional recommendations for finding adequate homes elsewhere, are devastating to class members. Their basic needs are neglected, their time is wasted, their bodies become constricted, and their behavior develops problems or deteriorates. They lose basic skills such as the
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ability to speak and to walk. They are deprived of the opportunity to live in a decent home and to build relationships with persons who do not have disabilities. Their human potential is wasted.
74. At best, staff provide bare custodial care. More often, they fail to provide the attention necessary to safeguard people with developmental disabilities from deterioration, atrophy, physical injury and abuse.
PLAINTIFFS ARE HARMED BY ABUSE AND NEGLECT 75. Plaintiffs' class suffers many incidents of abuse and neglect at the DSis. The rate of injury at DSis and GULF COAST is appallingly high and many injuries are unexplained. For example~ the fracture rate at GULF COAST has ranged from more than three times to more than five times the national average. Some individuals had as many as six fractures in a four year period. More than 57% of the fractures during 1996 were from unknown causes. 76. In large institutional settings such as DSis, people with developmental disabilities with maladaptive behavior will hurt other people with developmental disabilities. 77. Reasonable professional attempts to prevent injury are not made. Staff fail to intervene when people with developmental disabilities injure themselves or others. 78. Staff have not been trained in behavior management of individuals with mental retardation. The responsibility for day-to-day care of people with developmental disabilities is
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given to therapy aides who have no formal education or training in providing care to individuals with developmental disabilities.
79. Lack of trained staff and nonimplementation of programs contribute significantly to the high rate of injury.
80. DSI staff are not trained in the detection and reporting of abuse.
81. Tolerance of staff abuse of people with developmental disabilities is widespread. Staff do not report abuse because they have learned that reporting abuse would serve no purpose.
82. The administrations at the DSis do not seek independent investigations of abuse. To the contrary, the administration routinely discounts and refuses to accept the results of outside investigations. The administrations manifest deliberate indifference to abuse and neglect.
DEFENDANTS USE UNNECESSARY RESTRAINTS 83. In the absence of adequate programming to teach positive behavior, people with developmental disabilities at DSis are subjected to unnecessary restraints, both physical and chemical. 84. Medication for control of behavior is used at DSis outside of and not in conjunction with the individual program plan in violation of ICF/DD standards. 85. People with developmental disabilities are often restrained when the demands of individual people with developmental disabilities become inconvenient for staff.
MEDICAL CARE IS INADEQUATE
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86. Many people with developmental disabilities at DSis do not receive adequate, timely medical or dental care. Their health problems often go unrecognized and untreated, resulting in unnecessary deaths, illnesses, disabilities, and suffering.
87. Medical staffing at the DSis is not adequate to provide medical care that is consistent with professional standards. The level of primary medical care, and of specialized consultation and care. is seriously deficient.
88. Doctors, nurses and other staff at LANDMARK, MARIANNA, TACACHALE, and GULF COAST have little, if any, training in providing care to individuals with developmental disabilities.
89. Medical records and charts maintained for people with developmental disabilities are frequently inadequate and incomplete. Charting of persons with developmental disabilities' behavior, condition and progress on a daily basis is haphazard at best.
90. Because persons with developmental disabilities' physical conditions are not routinely monitored, medical treatment often does not begin until after a resident's condition has seriously deteriorated.
91. Long range planning for managing persons with chronic mental conditions is inadequate. The institutions fail to conduct basic and routine procedures for monitoring the course of chronic medical conditions and diseases.
92. DSis do not provide adequate preventative health and dental care.
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93. Poor medical care has resulted in injury and even death in some cases. For example, at LANDMARK, in 1995, L. D., age 32, died from internal blood loss as a result of a broken thigh bone. The injury was untreated for eleven hours, and L. D. died waiting for an X ray on a hospital gurney. The injury which caused his death -- the broken thigh bone -- was unexplained.
94. Individuals have been injured and even died as a result of poor emergency care. For example, at Marianna, A.C. choked on marshmallow candy. Resuscitation efforts by Marianna's medical staff were unsuccessful. The mortality review indicates that she was intubated in the wrong place, the esophagus, when the air tube should have been inserted in her wind pipe.
95. At GULF COAST, S, age 31, who had a severe seizure disorder, was found dead. The autopsy stated that she died from respiratory and heart failure(s). At the time of her death, her Dilantin (seizure medication) level was very low, which may have lead to a grand mal seizure.
96. Medical staff repeatedly fail to order necessary medical tests and document life-threatening illness and unexplained injuries. Important medical symptoms are ignored. Sometimes staff simply attribute medical complaints to personality problems of patients rather than investigating symptoms.
BEHAVIOR MANAGEMENT PROGRAMS ARE NOT ADEQUATE 97. Many individuals are confined to DSis because of behavior problems. Behavior management is an important component
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of habilitation and active treatment. However, the DSis have few if any programs to deal with individuals with severe behavioral problems. Physical and chemical restraints frequently are used as a substitute for appropriate behavior management techniques. Medication is often prescribed without a therapeutic goal. As a result, the behavior problems of individuals with developmental disabilities escalate.
98. Documentation of persons with developmental disabilities' behavior is inaccurate, unreliable, inconsistent and incomplete. The inadequacy of behavioral record-keeping deprives professional staff of the information necessary to make safe and appropriate professional decisions regarding training.
99. Direct care and other staff have not been trained to implement the behavior programs of the people with developmental disabilities they supervise.
100. The inability of the staff to deal with continual behavior problems results in more frequent accidents and injuries to persons with developmental disabilities.
101. The behavior management practices are inadequate to prevent or reduce the incidence of abuse and injury to individuals with developmental disabilities, or to ensure freedom from undue restraint.
VOCATIONAL TRAINING AND OPPORTUNITIES FOR EMPLOYMENT ARE NOT ADEQUATE
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102. People with severe and profound mental retardation and challenging behaviors can participate in productive work. They can work at real jobs in real workplaces.
103. With individualized and systemic instruction and practice, most persons with developmental disabilities at DSis have the capability to learn and maintain vocational skills.
104. The opportunity to use and practice vocational skills in real work settings enables persons with severe disabilities to earn wages and decrease their dependence on public support, and also provides the benefits of participating in the community in a valued role -- worker -- and developing relationships with coworkers, friends and other persons without disabilities. The opportunity to work in real job settings allows for modeling and learning appropriate work habits and social behaviors from peers without disabilities -- something that is not possible at DSis.
105. Many people with developmental disabilities at DSis do leave their cottages for two hours of "pre-vocational" or "work" activities. These programs do not provide any training in skills that can be used in real jobs.
106. The Division of Vocational Rehabilitation (DVR) is charged with serving individuals with the most severe disabilities. Individuals confined to DSis have most severe disabilities. Nonetheless, DVR does not provide any meaningful vocational services to individuals who are confined to DSis even though such services are clearly needed.
25

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 26 of 47
107. DVR does not do any outreach to individuals who are confined to DSis. DVR staff does not regularly visit DSis or inform individuals, guardians and families about their vocational services to DSis available from DVR. DVR does not make any accommodations or take any other action to assist individuals who are confined to DSis with applying for assistance from DVR.
MANY PERSONS REGRESS AT DSIS 108. As a result of the conditions at LANDMARK, MARIANNA, TACACHALE, and GULF COAST, many persons with developmental disabilities have significantly regressed.
ARCHITECTURAL BARRIERS HAVE NOT BEEN REMOVED 109. There are many architectural barriers at DSis that deny class members the opportunity to participate equally in public services, programs, and activities.
ATTORNEYS FEES 110. Plaintiffs have been obliged to retain counsel who filed this action. Plaintiffs therefore are entitled to attorneys fees under 42 U.S.C. §§ 1983 and 12205.
CLAIMS COUNT I: AMERICANS WITH DISABILITIES ACT 111. On July 12, 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (ADA), establishing the most important civil rights for persons with disabilities in our nation's history.
26

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 27 of 47

112. Congress stated in its findings that, "historically,

society has tended to isolate and segregate individuals with

disabilities, and, despite some improvements, such forms of

discrimination against individuals with disabilities continue to

be a serious and pervasive social problem." 42 U.S.C. §

12101 (a) (2).

113. Congress found that "discrimination against individuals

with disabilities persists in

institutionalization .

and access to public services." 42 U.S.C. § 12101 (a) (3).

114. Congress found that "individuals with disabilities

continually encounter various forms of discrimination, including

outright intentional exclusion

• I segregation, and

relegation to lesser services, programs, activities, benefits,

jobs, or other opportunities." 42 U.S.C. § 12101(a) (5).

115. Congress further found that:

individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.

42 U.S.C. § 12101(a) (7).

116. A major purpose of the ADA is to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities, and to

provide clear, strong, consistent and enforceable standards

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Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 28 of 47
addressing discrimination against individuals with disabilities.
42 u.s.c. § 12101(b)1&2.
117. The defendants themselves recognize that persons with developmental disabilities benefit greatly from living in the most typical and integrated setting possible, where they have opportunities to practice daily living skills in typical environments and to exercise choice and judgment.
118. Since at least 1985, Florida state law has provided that, for new facilities, an ICF/MR shall have a capacity of no more than 120 people. More recently, a Florida state law was enacted to prohibit the licensure and operation of any ICF/DD which houses more than six persons with developmental disabilities. The DSis would not be licensed under present law.
119. Research and experience have conclusively demonstrated that people with developmental disabilities are substantially better off in integrated community settings than in large institutional settings like the DSis.
120. The question of whether people with retardation and developmental disabilities are substantially better off in family-scale, integrated settings rather than large congregate settings (settings of more than 15 individuals) is no longer an issue for scholars and professionals in the field. There is strong consensus among scholars who have studied the relation between the size and quality of care that family-scale residences are substantially better than institutions for people with developmental disabilities in every way.
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Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 29 of 47
121. DCF has applied for and received a waiver from the Health Care Financing Administration of the United States Department of Health and Human Services. The waiver provides the same federal match -- 55 cents for every 45 cents -- that defendants receive for services at DSis. Effective use of the Federal Medicaid Waiver Program would enable Florida to provide integrated services to persons currently residing at DSis at no greater expense to the state treasury.
122. Defendants do not plan for services based on the identified needs of individuals. People are sent to DSis not because the service meets their individual needs but because institutional beds are available while services in the community are not available.
123. DVR does not provide any meaningful vocational services to individuals who are confined to DSis even though such services are clearly needed.
124. Each plaintiff and each class member is "a qualified individual with a disability" within the meaning of 42 U.S.C. § 12131(2).
125. Defendants operate public entities and are therefore subject to Title II of the ADA, 42 U.S.C. §§ 12161-12165.
126. Defendants have violated the rights of plaintiffs secured by Title II of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12161-12165 and regulations promulgated pursuant thereto, at 28 C.F.R. Part 35 by:
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Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 30 of 47

a.

Denying plaintiffs and class members the

opportunity to participate in, and the benefits of, public

services and programs that are as effective and meaningful as

those delivered to other citizens and that are delivered in less

separate, more integrated settings; and

b.

Failing to make reasonable accommodations and

modifications in policies, practices and procedures to enable

class members to participate in integrated public services and

programs; and

c.

Failing to make reasonable accommodations and

modifications in policies, practices and procedures to enable

class members to participate in vocational rehabilitation

programs in the community, including failing to provide outreach

to individuals confined to DSis about services available from

DVR; failing to assist individuals confined to DSis in applying

for services from DVR; failing to do appropriate assessments

regarding individuals confined to DSis, and failing to provide

meaningful vocational rehabilitation services to individuals

confined to DSis;

d.

Imposing eligibility criteria that

unnecessarily exclude certain classes of individuals with

disabilities and to prevent class members from fully and equally

enjoying public services, programs, and activities; and

e.

Failing to administer public services, program

and activities from class members in the most integrated setting

appropriate to their individual needs; and

30

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 31 of 47

f.

Failing to furnish appropriate auxiliary aids

and services to enable class members and equal opportunity to

participate in, and enjoy the benefits of, public services,

programs and activities; and

g.

Failing to remove architectural and

communication barriers to enable class members to participate in

public services, programs and activities;

h.

Segregating people with developmental

disabilities at LANDMARK, GULF COAST, TACACHALE, and MARIANNA;

and

i.

Aiding and perpetuating discrimination against

class members in public services.

COUNT II: SECTION 504 OF THE REHABILITATION ACT

127. Defendants receive federal funds and are therefore

subject to the requirements of Section 504 of the Rehabilitation

Act of 1973 (Section 504), 29 U.S.C. § 794.

128. Plaintiffs meet the definition of having a "handicap"

within the meaning of 29 U.S.C. § 706(7) and are otherwise

qualified individuals under Section 504.

129. Defendants have violated the rights of plaintiffs

secured by §§ 100 and 504 of the rehabilitation Act of 1973, as

amended, 29 U.S.C. §§ 720 and 794, and regulations promulgated

pursuant thereto, 45 C.F.R. parts 84 and 1361, by:

a.

Denying plaintiffs and class members the

benefits of federally assisted services and programs; and

31

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 32 of 47

b.

Failing to provide plaintiffs and the class

federally assisted services that are as effective and meaningful

as those delivered to other persons and that are delivered in

less separate, more integrated settings; and

c.

Failing to make reasonable accommodations and

modifications in policies, practices and procedures to enable

class members to participate in vocational rehabilitation

programs in the community, including failing to provide outreach

to individuals confined to DSis about services available from

DVR; failing to assist individuals confined to DSis in applying

for services from DVR; failing to do appropriate assessments

regarding individuals confined to DSis, and failing to provide

meaningful vocational rehabilitation services to individuals

confined to DSis;

d.

Denying plaintiffs and the class the benefits

of federally assisted training, habilitation and other programs

on the basis of the severity of their intellectual or other

disabilities; and

e.

Segregating people with developmental

disabilities at LANDMARK, GULF COAST, TACACHALE, and MARIANNA;

and

f.

Providing federally assisted services to

persons with severe intellectual disabilities and for people with

physical or behavioral disabilities only in segregated settings;

and

32

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 33 of 47

g.

Aiding and perpetuating discrimination against

named plaintiffs and class members in federally-funded programs.

130. Defendants' practices, policies and procedures

described above, violate the rights of plaintiffs and class

members that are secured by Section 504 by discriminating against

these individuals solely on the basis of disability.

COUNT III: REHABILITATION ACT AND 42 U.S.C. § 1983

131. The Rehabilitation Act of 1973, 29 U.S.C. § 720, et

al., and 42 U.S.C. § 1983, require that defendant DVR provide

vocational rehabilitation services to individuals with the most

severe disabilities.

132. Plaintiffs and class members have disabilities as

determined pursuant to title II or title XVI of the Social

Security Act.

133. Plaintiffs have physical or mental impairments which

result in a substantial impediment to employment.

134. Plaintiffs have a severe physical or mental impairment

which seriously limits one or more functional capacities in terms

of an employment outcome under 29 U.S.C. § 706(15) (A) (i).

135. Plaintiffs and class members are individuals with most

severe disabilities under 29 U.S.C. § 722(a) (2) and

706 (15) (A) (i).

136. Defendant Allen violates the requirements of 29 U.S.C.

§ 720, et al., by

a.

failing to provide outreach to individuals

confined to DSis about services available from DVR;

33

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 34 of 47

b.

failing to assist individuals confined to DSis

in applying for services from DVR;

c.

failing to do appropriate assessments regarding

individuals confined to DSis,

d.

failing to provide meaningful vocational

rehabilitation services to individuals confined to DSis.

COUNT IV: SOCIAL SECURITY ACT

137. Plaintiffs and class members receive Medicaid benefits.

138. Defendants have violated the rights of plaintiffs

secured by Title XIX of the Social Security Act, 42 U.S.C. §§

1396, 1396(a), and 1396d(d), the regulations promulgated pursuant

thereto, 42 C.F.R. § 435.1009; part 483, subpart D; and part 456,

subparts E,F, and I, and by 42 U.S.C. § 1983, by

a.

Failing to exercise adequate operating

direction over the institutions as required by 42 C.F.R. §

483 . 410 (a) (1 ) ; and

b.

Failing adequately to document plaintiffs' and

class members' health care, active treatment, and other

information as required by 42 C.F.R. §§ 483.410(c) (1) and

483 . 440 (c ) (5 ) (i v) ; and

c.

Failing to allow and encourage plaintiffs and

the class to exercise their rights as citizens, as required by 42

C . F . R. § 483 . 420 (a) (3 ) ; and

d.

Failure to enable plaintiffs and the class to

communicate, associate and meet privately with persons of their

choice, and to participate in social, religious and community

34

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 35 of 47

group activities, as required by 42 C.F.R. § 483.420(a) (9) and (11); and

e.

Failing to enable plaintiffs and the class to

retain and use appropriate personal possessions and clothing, as

required by 42 C.F.R. § 483.420(a) (12); and

f.

Failing to promote participation of

plaintiffs' and class members' parents and legal guardians in the

process of providing active treatment to plaintiffs and class

members, as required by 42 C.F.R. § 483.420(c) (1); and

g.

Failing to implement procedures that prohibit

physical, verbal, sexual and psychological abuse or punishment,

as required by 42 C.F.R. § 483.420(d) (1); and

h.

Failing to provide an active treatment program

that is integrated, coordinated and monitored by a qualified

professional for persons with developmental disabilities, as

required by 42 C.F.R. § 483.430(a); and

i.

Failing to provide sufficient professional

staff and adequate professional program services to implement the

active treatment program defined by each plaintiff and class

member's individuals program plan, as required by 42 C.F.R. §

483.430(b); and

j.

Failing to provide appropriately qualified,

trained and competent staff in numbers that are sufficient to

assist and supervise plaintiffs and the class in carrying out

their individual program plans, as required by 42 C.F.R.

483.430(c), (d) and (e); and

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Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 36 of 47

k.

Failing to provide plaintiffs and class members

with a continuous, aggressively and consistently implemented

program of active treatment, consisting of needed interventions

and services in sufficient number and frequency to enable

plaintiffs to attain as much self-determination, independence and

optimal functional status as possible, as required by 42 C.F.R. §

483.440(a); and

1.

Failing to provide plaintiffs and the class

with adequate post-discharge plans, as required by 42 C.F.R. §

483.440(b); and

m.

Failing to provide plaintiffs and the class

with accurate, comprehensive functional assessments identifying

their developmental strengths, their developmental and behavioral

needs, and their need for services, without regard to the need

for availability of services, as required by 42 C.F.R. §

4 83 . 44 0 (c ) (3 ) ; and

n.

Failing to provide plaintiffs and the class

with adequate individual program plans setting forth the specific

objectives necessary to meet the individual's needs, as required

by 42 C. F . R. § 483 . 44 0 (c) (4 ) ; and

o.

Failing to ensure that class members'

individual program plans identify the mechanical supports needed

to achieve proper body position, balance or alignment and specify

the reason for each support, the situations in which it is to be

applied, and a schedule for its use, as required by 42 C.F.R. §

4 83 . 44 0 (c ) (6 ) (i v) ; and

36

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 37 of 47

p.

Failing to ensure that class members'

individual program plans include opportunities for choice and

self-management, as required by 42 C.F.R. § 483.440 (c) (6) (vi);

and

q.

Failing to ensure that each plaintiff's and

class member's individual program plan is implemented by all

staff who work with that person, as required by 42 C.F.R. §

483 . 440 (d) (3) ; and

r.

Failing to ensure that each plaintiff's and

class member's comprehensive functional assessment is reviewed as

least annually by the interdisciplinary team for relevancy and

updated as need, and that person's individual program plan be

revised, as appropriate, s required by 42 C.F.R. § 483.440 (f) (2);

and

s.

Failing to ensure that interventions for

managing challenging behavior of plaintiffs and class members are

employed with sufficient safeguards and supervision to protect

their safety, welfare and civil and human rights, as required by

42 C. F . R . § 483 . 450 (b) (2 ) ; and

t.

Failing to incorporate the use of systematic

interventions to manage inappropriate behavior into class

members' individual program plans, as required by 42 C.F.R. §

4 83 . 4 50 (b) (4 ) ; and

u.

Failing to assure that drugs for control of

inappropriate behavior are approved by the interdisciplinary team

and used only as an integral part of an individual program plan

37

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 38 of 47

that is directed specifically toward the reduction of and

eventual elimination of the behaviors for which the drugs are

employed, as required by 42 C.F.R. § 483.450(e) (2); and

v.

Failing to provide medical services necessary

to maintain an optimum level of health of each individual and

prevent disability, as required by 42 C.F.R. § 483.460(b); and

w.

Failing to assure that health services are

integrated into the class member's individual program plan, as

required by 42 C.F.R. § 483.460(b); and

x.

Failing to assure that class members have an

adequate living environment, as required by 42 C.F.R. § 483.470;

and

y.

Failing to assure adequate food, nutrition, and

meal services, as required by 42 C.F.R. 483.480; and

z.

Failing to maintain the compliance of DSis,

with the conditions of participation for intermediate care

facilities for persons with developmental disabilities; and

aa.

Failing to determine whether services available

at LANDMARK, GULF COAST, TACACHALE, and MARIANNA, are adequate to

meet their health, rehabilitative and social needs and to promote

their maximum physical, mental, and psychosocial functions, as

required by 42 C.F.R. § 456.609(a); and

ab.

Failing to determine whether it is necessary

and desirable for plaintiffs and class members to remain at

LANDMARK, GULF COAST, TACACHALE, and MARIANNA, as required by 42

C.F.R. § 456.609(b); and

38

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 39 of 47

ac.

Failing to review the appropriateness of

plaintiffs' and class members' continued segregation at LANDMARK,

GULF COAST, TACACHALE, and MARIANNA, and failing to determine the

feasibility of meeting their needs through alternative

noninstitutional services, as required by 42 C.F.R. § 456.609(c);

and

ad.

Failing to ensure adequate utilization review

and discharge planning; and

ae.

Failing properly to evaluate each plaintiff's

need for admission prior to movement to LANDMARK, GULF COAST,

TACACHALE, and MARIANNA.

COUNT V: DUE PROCESS CLAUSE OF THE

UNITED STATES CONSTITUTION AND 42 U.S.C. § 1983

139.

Defendants have violated the rights of

plaintiffs secured by the Due Process Clause of the United States

Constitution, and by 42 U.S.C. § 1983, by:

a.

Subjecting plaintiffs and the class to harm and

injury, including abuse, injuries from accidents and neglect,

regression, physical deterioration, deprivation of social

relationships, and the harms arising from segregation and

confinement; and

b.

Failing to provide adequate shelter, clothing,

food and health care; and

c.

Imposing unnecessary restraints, physical and

chemical; and

39

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 40 of 47

d.

Failing to provide minimally adequate

habilitation and training; and

e.

Failing to give consideration to the

habilitative living situations and other needs and rights of each

individual class member, treating him or her in accordance with

his or her own situation; and

f.

Conclusively presuming that class members

cannot benefit from particular services or cannot live in non-

institutional settings; and

g.

Denying the class members an adequate

opportunity to be heard on the appropriateness of their

habilitative plan, programs and environment; and

h.

Failing to provide a friend-advocate to assist

each class member to exercise his or her rights enumerated above;

and;

i.

Failing, in the actions and inactions set forth

above, to exercise true professional judgment,

COUNT VI: EQUAL PROTECTION CLAUSE OF THE

UNITED STATES CONSTITUTION AND 42 U.S.C. § 1983

140. Defendants have violated the rights of plaintiffs and

the class secured by the Equal Protection Clause of the

Fourteenth Amendment and 42 U.S.C. § 1983 by establishing,

encouraging and otherwise sanctioning in de jure fashion

enactments, programs, policies and practices that have excluded,

separated and segregated persons with developmental disabilities

without any rational basis.

40

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 41 of 47

RELIEF

WHEREFORE, plaintiffs respectfully request that this Court:

1. Declare that defendants' actions and inactions, as

described herein, violate plaintiffs' rights under

the Americans with Disabilities Act and implementing federal

regulations; the Rehabilitation Act of 1973 and implementing

federal regulations; Title XIX of the Social Security Act and

implementing federal regulations; the Due Process Clause of the

Fourteenth Amendment to the United States Constitution; and the

Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution.

2. After hearing, preliminarily and permanent enjoin the

defendants:

a.

to provide each plaintiff and each member of

the plaintiff class with effective developmental services in

an integrated community setting with the necessary support

services to meet the individual's needs;

b.

to make available the necessary alternative

residential facilities, home services and vocational and day

services in the community;

c.

to cease admitting persons to LANDMARK,

MARIANNA, TACACHALE, and GULF COAST or from transferring

present people with developmental disabilities at LANDMARK,

MARIANNA, TACACHALE, and GULF COAST from LANDMARK, MARIANNA,

TACACHALE, and GULF COAST unless such transfer is to the

41

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 42 of 47

most integrated community setting appropriate to their

needs, and appropriate developmental services are provided;

d.

to request, train and assign sufficient numbers

of case managers and qualified mental retardation

professionals to develop written individualized habilitation

and discharge plans for each plaintiff and members of the

plaintiff class and to provide an individualized

habilitation program for each;

e.

to establish a system to prevent abuse and

neglect of people with developmental disabilities at

LANDMARK, MARIANNA, TACACHALE, and GULF COAST, to thoroughly

and promptly investigate allegations of abuse and neglect

and to establish appropriate disciplinary consequences for

abuse and neglect of people with developmental disabilities

by staff;

f.

to develop and implement a professionally

designed, consistently and aggressively implemented program

of training, treatment, and other services to each person at

LANDMARK, MARIANNA, TACACHALE, and GULF COAST to enable him

or her to function with the greatest self-determination and

independence possible;

g.

to provide a safe environment for each class

member at LANDMARK, MARIANNA, TACACHALE, and GULF COAST;

h.

to make available a friend-advocate to each

plaintiff and member of the plaintiff class to assist each

42

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 43 of 47

in securing the substantive and procedural protections aforesaid;

i.

to make available with dispatch the necessary

alternative of a small home in the community with adequate home

services, vocational and day services in the community, including:

(1) an effective, independent, conflict-free

system of case management and service coordination for class members; and

(2) identification of the support and services

needed by class members by a process of person-centered planning; and

(3) service plans based on need rather than

availability of services reflecting the value of supporting the

person with relationships, productive work, participation in community life, and personal decision-making; and

(4)

a system of personal advocacy and self-

advocacy to assist class members in asserting their rights; and

(5) an effective, systematic resource

development capability, including but not limited to, a program

to ensure the availability of appropriate community residential

services; appropriate medical, dental, psychiatric, therapeutic,

and behavioral support services; appropriate community-integrated

employment services and other day activities in community-

integrated employment services and other day activities in

community-integrated settings; and

43

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 44 of 47

(6) an effective quality assurance system in

the community capable of detecting and remedying problems in

class members' programs in a systemic and coordinated fashion;

and effective, mutually supportive management information systems

of reporting, oversight and communication of information are

organized and operational; and

(7)

effective performance contracting

systems.

j.

to provide class members and their families

with an opportunity to be heard by a neutral decision-maker on

the substance of their program and future home;

k.

to submit to plaintiffs and to the Court for

its approval a plan for implementation of the aforesaid.

3. Award plaintiffs their costs and attorneys' fees; and

4. Grant such other relief as is appropriate.

44

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 45 of 47

Respectfully submitted,
£@711~fl__
ELLEN M. SAIDEMAN Senior Attorney Fla. Bar No. 038751

enior Attorney la. Bar No. 983292

ADVOCACY CENTER FOR PERSONS

WITH DISABILITIES, INC.

2901 Stirling Road

Suite 206

Fort Lauderdale, 33312

(954) 967-1493

(Facsimile) (954) 967-1496

At rney for Plaintiffs

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TER NIMKOFF

Litigation Director

Fla. Bar No. 58840

ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2671 Executive Center, Circle W., Suite 100 Tallahassee, Florida 32301 (850)-488-9071 (Facsimile) (850) 488-8640

45

Case 1:98-cv-00673-JEM CDoIVcuImLenCt 1OEVntEerRed oSn FHLSEDEDTocket 03/26/1998 Page 46 of 47
The JS-44 Civil cover sheet and the information contained herein neither replace nor supplement the filing_ and service of pleading or other papers as required by law. except as prov1ded by local rules of court. Th1s form. approved by the Jud1c1al Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I (a) PLAINTIFFS Shelyndra Brown, by

DEFENDANTS Lawton Chiles, in his official

her mother and next friend,

capacity as Governor of the state of

Jesse O'neil; Ronald Adside, by his

Florida; Edward Feaver, in his official

father and next friend, Claude F.

capacity, Tamara Allen, in her official

6 Adside; Henry Sims by _

his capacity, Charles Kimber, in his official

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ATTORNEYS (IF KNOWN)

Ellen Saideman, Juliette Lippman

Chesterfield Smith, Assistant Attorney

The Advocacy Center

General,Office of Attorney General, The

**please see atta~hment** ___________ LCapitol-PI.Ol, Tallahassee, FL 32399 1050

CLE COUNTY WHERE ACTION AROSE:

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PTF 0 1

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coozon o1 """'""' s..,.

0 2

0 2

CC•zonors..c,ocrola •oroognCounl"' 0 3

0 3

~ __o

\.0 r-

(PLACE AN X IN ONE BOACn-fK PLAI~F AmJ ONE

BOX FOR DEFENDANT) tj>ffiC":- :I: ~

8-.,- lnootporolod d ~ .,...,. ol 5 , _ . in Thia Slalo
~nootporo~od and ~ Ploco or
Slolo

• 3' ::.4

0 ;:..; ;:.

;"!'''!J~S:

C5
V'

::::::0
~ N

cJD 4
-<

-

l>g":~

IV. CAUSE OF ACTION

(CITE THE U.S CIVIL STATUTE UNDER WHICH YOU ARE FlUNG ANO WRITE A 8Rit:M"'l'£MI&T

4 2 USC DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY} § 1 2101 , e t seq; 29 USC § ..;r.gf~, ~

720 et seq, 42 USC § 1396 et seq, Due process and equal protec~~ro ~u of

the fourteenth amendment; and 42 USC§ 1983. Plaintiffs seek declar~rpand

IVa.

days estimated (for both sides) to try entire case **please see attachment 1**

~

V. NATURE OF SUIT

------·

(PLACE AN X IN ONE BOX ONLY) --------· -··

A CONTACT
·---~----- -~---+--
l l 110 Insurance

A TORTS PERSONAL INJURY

"-" -----

B FORFEITURE PENALTY
0 610Agnculura

l] IZO Manne

0 310 Aorplano

o.,.. 0 0 J62 Pei'S(X'IallOJUIY MEld Ma~ce

620 Olhe< Food &

rJ , JO . . - Ac.

o 315 Aorplano Product'--r

0 365 POBC>nali"'U'Y-P-.:1 Uabololy

0 625 OrUfjJ Related Sazure
ol Prope<ly 21 usc 881

-A BANKRUPTCY
-0 422~28USC158 0 423 Wohdnlwol 28 usc 157
A PROPERTY RIGKTS

A OTHERSTATUS
0 400SI.ales ReopporOmonl
0 410 Aneilrusl 0 4308alli<sond

0 1.co NeqoliollJte lnstrumenl
0 I SO ~~:c~=~~

0 320 Assaul. Lba1 & Slander 0 3J0 FedenlIE..-p10ye<5'L-y

0 368 AsbesiO& P~
1n;ury Pnxtuct llilbd11y
PERSONAL PROPERTY

0 630 lqUOf Laws 0 640RA & Trvck

0 820CopytVOs
0 830 Patenl

0 450 Cotrmata>'ICC Raleslelc 8 0 460 Deporlalioo

0 151 Medicare Act

0 340 Maroa

D IS2Sl~~~~(~:W:!efWlS)B 0 J.45Marne -~y

0 370 Olher Frau;j 0 371 Trvlh n LerOnq B

0 650 AK1ine Rags 0 660 Occ::\4)aiiOf\iiJ Safet)MNih

0 8-40 Trademar\.
B SOOAL SECURITY

0 4 70 Rac:Uieer Com4oC
0 81 D Selective S.I"Aca

0 1SJ~~";,Z,~~=~
8 160 ~oc:i<1'dder's SUits 0 I90 Olhet Conlract 0 195 Coolr"" Produ:l L-v
A REAL PROPERTY
0 210 Land Condennat100 0 220 Forecloa.-e 8 0 230 Renllea.se & Ejedmenl 0 240 Torts &o Land 0 245 Tort P-.:1 t.--, 0 290 All Olher Real ~y
VI. ORIGIN
XP 1 C>n)lnal
Proceeding
VII. REQUESTED

0 3SOMo40f Vehido
0 355 Molar VehidoProduct~y 0 J60 Olhe< Pe<oonollnjuoy
A CIVIL RIGHTS
...... 0 441 VOlin)
0 442 Errpby
... 0 44JHous"91~
~UCWel 1.J 440 ()(her CMI RigiU
0 2 Remowd From
Stale Court CHECKIFTliiSISA

0 380 Other P~
Pmperty Damage
0 J85 Pooperty Oamago
Produc1 L&abllrty
B PRISONER PET1110NS
0 510 Motions to VKale Sercence

0 690 Olhe<
A LABOR
ro·],o Faer Labor Standards Act
0 720 t..abof MaNQerrenf Relahona 8
0130Uboo~ Aapon.-.g & o;odoo""' k1
0 740 Fla-y'-"""' Ad

0 861 HIA (139511)
0 862 81ado Lung (923) 0 863 OIWC.OIV.W (405{g)) 0 1164 SSID r<ie XVI
0 865 RSI (405(g))
A FEDERAL TAX SUITS

0850
0 875 CuA>mar a.1or9< IZUSC34 10
0 891 Agricullu<ol Ads 0 892 E""""'*= 0 893EnW<>n"*""' Malloro 0 89< E""'VV Alocaloo

Habeas Coopus
0 SJO Goner-or ·

0 790 Dlh« Labor LliQalion

0 aror..... (U.S.- oro.t..-.Jorl) 0895Fr_,oC lnlormOilonM

0 791E.,..,.,.,. .... lrr: Secu<yMB 0 871 IAS-Thinj Pony 26 USC 7609

0 900~olfoe Oe4et..,..1ion
Undor Equol ~to..katiot

0 535 Doolh Penolly

0 950 Conoll\.CIOnOil or S&lll:e St.tu•

0 !'>40 Manda...... Olhe< .

0 890 Dlh« SlahAory Mbr-.'

0 sso Civl AlgiU

"AorB

·A orB

--------------- -------- -------

(PLACE AN X IN ONE BOX ONLY)

0 J. Ro.....-.Jod hom

0 < Re,_

0 6 ..,...,_,.. Lllgolion

0 1 .....,.., lo [)!stnCI .luOQO horn

Appelale Court
CLASS ACTION

..,........ Q 5 Trarwferred from anochef dislrid CSp!cfyl

DEMAND$

0 Chad< YES rriy I dorrandod in

Magistnale Judgmenl
0 YES

IN COMPLAINT 0 UNDER FA c p 2J

-------------

-. - - - - - - - - - - - --=J..:U=:.R.o..Y:..:...D..:=E.=cM:.::.A.:::N:..:.D::c.::......_ _0_ _ NO _ _ _ _ _~---·

VIII. RELATED

(See Instructions):

CASE(~lf AN.Y_ ____________ _

JUDGE__ Fe ur=u=s=o=n====

DOCKET NUMBER 96 6619-CIV

DATE

SIGNATURE OF ATTORNEY OF RECORD

UNITED STATES DISTRICT COURT

Case 1:98-cv-00673-JEM Document 1 Entered on FLSD Docket 03/26/1998 Page 47 of 47
ATTACHMENT
I(a) PLAINTIFFS
Mervyn Morell, by his father and next friend, Isadro Morell; Lynda Faye Johnson, by her guardian advocate and next friend Sylvia Scott; Kerry Magham, and The Advocacy Center For Persons With Disabilities, Inc.
DEFENDANTS
official capacity, Tracey Clemons, in his official capacity, Michael Murphy, in his official capacity, Robert Morin, in his official capacity, Anita Bock, in her official capacity, John Awad, in his official capacity, Ester Tibbs in her official capacity, Francis Gibbons, in his official capacity.
(c) Attorneys for Plaintiffs
2901 Stirling Road I Suite 206, Ft. Lauderdale, FL 33312
954-967-1493 and Peter Nimkoff, The Advocacy Center
2671 Executive Center, Circle West I Suite 100, Tallahassee Florida 32301-5092 I 850-488-9071
IV. Cause of Action
injunctive relief for defendants' violations of 42 USC § 12101 et al, by confining them to state developmental institutions and denying them services in integrated settings among other things.

 </s> Case 1:98-cv-00673-JEM Document 123 Entered on FLSD Docket 03/11/1999 Page 1 of 2

SHELYNDRA BROWN, et al., Plaintiffs,
vs_

UNITED STATES DISTRICT COUJtT SOUTHERN DISTRICT OF FLORIDA

Case No. 98-673-CIV-FERGUSOJ_

I

-

MEMORANDUM ON MOTION FOR CLASS CERTIFICATION

LA\VTON CHILES, et al. Defendants.
----------------------------I

THIS CAUSE is before the Court on Plaintiffs Motion for Class Certification [D.E. 42]. Having considered the motion, response, arguments ofcounsel, and pertinent portions ofthe record, it is
ORDERED AND ADJUDGED that the Motion will be GRANTED. The plaintiffs are to prepare a proposed order certifying the class in this case as "all persons who on or after January 1, 1998 have resided, are residing or will reside at the DSis, including all persons who have been transferred from DSis to other settings, such as intermediate care facilities, group homes or skilled nursing facilities but remain defendants' responsibility; and all persons at risk ofbeing sent to DSis." This proposed order, including findings of fact and conclusions oflaw, shall be submitted by March 17, 1999. The defendants are to submit any objections to the proposed order by March 22, 1999.

._ij r·,
I '-' -

Case 1:98-cv-00673-JEM Document 123 Entered on FLSD Docket 03/11/1999 Page 2 of 2

* ENTERED in Chambers at Ft. Lauderdale, Florida, this { (J day ofMarch, 1999.

/"

\

'

"··.\. I

ff\ >'

•

'

WILKIE D. FE US N, JR. UNITED STATES TRICT JUDGE

copies provided: Peter Nimkoff, Esq. Chesterfield Smith, Jr., Esq. Andrew J. Meyers, Esq.

 </s> Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

SHELYNDRA BROWN, by her mother and next friend, JESSE O'NEIL, et al.,
Plaintiffs,
vs.
JEB BUSH, in his official capacity as Governor of the State of Florida, et al.,
Defendants.
------------------------·'

CASE NO.: 98-673-CIV-MARTINEZ/DUBE

SETTLEMENT AGREEMENT

The Plaintiffs, as representatives of the certified class, and Defendants have reached an agreement as to a plan for settling this litigation. The Parties are hereby filing this Settlement Agreement (Agreement or Agreement of the Parties) with the Court, and ask that the Court approve the Agreement pursuant to Fed. R. Civ. P. 23(e), which approval is a condition precedent to the Agreement's effectiveness. The Parties jointly enter this Agreement. Upon approval of the Agreement by the Court, all further proceedings in this case will be stayed or abated until no later than June 30, 2007, as discussed further below in Part III, paragraph 6.

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 2 of 11
I. DEFINITIONS 1. "DS Waiver" means the Florida Developmental Services Home and Community Based Services Waiver. 2. "Department" means the Department of Children and Family Services. 3. "Advocacy Center" means the Advocacy Center for Persons with Disabilities, Inc. 4. "Systemic problems or deficiencies" shall mean problems or deficiencies which are common in the Defendants' compliance with the requirements of this Agreement and inconsistent with the terms of this Agreement. Isolated instances of deficiencies or problems in compliance with the requirements of this Settlement Agreement, without evidence of more pervasive conduct, are not "systemic" in nature. 5. "DSI" means any of the four (4) Developmental Services Institutions which are owned and operated by the State of Florida. The acronym "DSis" shall be used to refer to all four (4) ofthe Developmental Services Institutions. 6. The term "Defendants" shall refer to the named Defendants in this case. 7. "Material breach" shall mean systemic deficiencies in compliance with the requirements of the Settlement Agreement. Minor or isolated delays in compliance, without evidence of more systemic deficiencies shall not constitute material breach. 8. "Class members" shall refer to members of the class as certified by this Court.
II. PLAN OF COMPLIANCE The Defendants agree to do the following to settle this action:
2

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 3 of 11
1. The support planning process for all individuals residing in the DSis will first determine the supports and services that the individual needs to live in the community. The process will be based upon a positive view of the individual's abilities and skills. Based on the determination of the supports and services that the individual needs to live in the community, the treatment team will then make a recommendation on whether the individual is appropriate for community placement.
2. The Department will begin to administer the Individual Cost Guideline tool on May 1, 2004, and will implement the tool for all individuals who are residing in DSis, by May 1, 2005.
3. During the term ofthis Agreement, the Department will provide copies of all community placement or discharge plans for DSI residents to the Advocacy Center, as counsel for the class, within ten days of completion of the plan, but at least thirty days prior to discharge, unless the DSI resident or his or her guardian or guardian ad litem opposes the provision of such copies to the Advocacy Center.
4. The Department will comply with Policy## 02-01 (Due Process Policy) implemented on May 1, 2002, or amendments to this policy, as it relates to individuals residing at the DSis who seek enrollment on the Florida Developmental Services Home and CommunityBased Services Waiver (DD Waiver), including adverse determinations made on requests for particular waiver services.
5. During the term of this Agreement, the Department will provide copies of any due process letters for DSI residents to the Advocacy Center, as counsel for the class, within ten days
3

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 4 of 11
of issuance, unless the DSI resident or his or her guardian or guardian ad litem opposes the provision of such copies to the Advocacy Center.
6. This Agreement itself creates no right to monitor the adequacy of communitybased placements. To the extent that DSI residents believe that the package of community-based supports and services, or the alternative placement they are being offered is inadequate, that inadequacy may be addressed in fair hearings separate from this litigation.
7. The Department will develop and implement an education and training program substantially similar to what has been utilized at Landmark, for treatment team members and other DSis staff designed to ensure that informed professional judgments are made about community placement and services. Defendants retain the flexibility to modify the program based on best practices and experience.
8. The education and training program will include a description of the services and supports available to people with developmental disabilities in the community, the professional standards for determining how persons with developmental disabilities can best be served in the community, and the benefits of community living.
9. The Department will provide an education program, substantially similar to what has been utilized at Landmark, for consumers, families, guardians, and guardian advocates. Defendants retain the flexibility to modify the program based on best practices and experience. The program will include a description of:
a. the services and supports available in the community; b. the experiences of people with developmental disabilities who live in the community; and
4

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 5 of 11
c. the professional judgment concerning the benefits for persons with developmental disabilities to live in the community.
10. By July 1, 2004, the Plaintiffs and the Department will work together to develop the outline and materials for the family education program. However, the final content of the educational program outline and materials will be in the sole discretion of Department. The Plaintiffs and the Department will cooperate in implementing the program.
11. The Department will close Landmark no later than June 30, 2005 and will develop a plan for closure of Gulf Coast Center by June 30, 2005.1 The plan will include those actions necessary to close the facility by July 1, 2010.
12. By June 30, 2007, the Department will reduce the combined census of the DSis by at least 180 individuals, at a rate of 60 persons per year. At least 85% of the 180 persons will be emolled on the DS Waiver. The death of a DSI resident shall not count toward census reduction. Additionally, to the extent that the Legislature appropriates funding to serve persons from the DS Waiver waiting list, there are residents of the DSis who are near the top of that waiting list who would likely be served if the funding is available to serve the waiting list. For fiscal year 2004-2005, to the extent that funding is appropriated to address the DS Waiver, the Department will serve up to 50 class members from the DS Waiver waiting list in the rank order they appear on the waiting list. These class members shall be in addition to the census reduction of60 persons for the fiscal year 2004-2005. Should funding be available and the Department is able to serve more than 50 class members from the DS Waiver waiting list in the rank order they
1/The Parties understand and agree that the actual closure of Gulf Coast Center will not be accomplished during the life of this Settlement Agreement.
5

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 6 of 11
appear on the waiting list, then any additional persons served in fiscal year 2004-2005 shall count toward the 60 person census reduction requirement for fiscal year 2005-2006.
13. For fiscal years 2005-2006 and 2006-2007, to the extent that the Legislature appropriates funding to address the DS Waiver waiting list, and there are persons from the DSis who are enrolled on the DS Waiver from the DS Waiver waiting list, those individuals would be counted toward the 60 person overall census reduction for each fiscal year. Nothing in this Agreement shall be interpreted to deny services to any individual who would otherwise be served by the DS Waiver based on rank order and the availability of funding for services.
14. The above-mentioned census reduction cannot be accomplished ifthere are prolonged delays in the discharge process (or the process leading up to ultimate discharge). The parties agree to work together to avoid any unnecessary delays in the discharge process.
15. The Department agrees that additional funding is necessary to accomplish the phasing down of the census ofthe DSis as noted above. This funding must be sufficient to provide services to individuals transitioned from the DSis in their first year to the DS Waiver.
16. The Department has already submitted a Legislative Budget Request seeking the necessary funding to move 60 persons out of Landmark for fiscal year 2004-2005 and to serve approximately 3,200 persons from the DS Waiver waiting list. This is also included in the Governor's Budget Recommendations.
17. For fiscal years 2005-2006 and 2006-2007, the Department will submit a Legislative Budget Request seeking the necessary "start up" funding necessary to accomplish the census reduction activities described in paragraph 12 above in each of these respective fiscal
6

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 7 of 11
years. The Legislative Budget Request shall seek the amount of funding necessary to provide services to individuals transitioned from the DSis in their first year on the DS Waiver.
18. The Department will utilize its best efforts to secure the funding described in paragraph 17.
19. If, despite taking the actions described above, the Legislature fails to adequately fund the Department's budget in a manner which prevents the Department from implementing the census reduction described in this agreement, then the failure to comply with the provisions of paragraphs 12 and 13 in this Part will not be deemed to be a material breach of the Agreement.
III. RESOLUTION 1. The Parties agree that the Plan of Compliance set forth in Part II, paragraphs 1- 19 above, resolves all issues which have been raised in the pleadings in this cause, and should be implemented. 2. The parties have entered into this Agreement in order to avoid the uncertain outcome of litigation. Nothing in this Agreement should be construed as an admission of liability by Defendants, and cannot be used as an admission by either party in this or any other proceeding. Neither this Agreement nor any action to carry out this Agreement is or may be used as an admission by or against the class members or class counsel regarding the lack of merit of the claims asserted. The parties agree not to use this Agreement or any of its terms or provisions in any other case or matter to argue that any party has conceded that any particular action must be taken or not taken.
7

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 8 of 11
3. This Agreement, including the Plan of Compliance, is the product of multiple lengthy negotiation sessions, and compromise by the Plaintiffs, the Plaintiff Class, and the Defendants.
4. To help ensure effective implementation of the Plan of Compliance, the State Defendants have received input, through counsel from the Class Plaintiffs, who are the intended beneficiaries of the Plan of Compliance.
5. The Department shall provide quarterly reports to the Advocacy Center and to the lead plaintiffs' attorney (as designated by the Advocacy Center) of its progress in implementing this Agreement. At the request of either party, a meeting to discuss implementation issues shall be scheduled within ten days.
6. The Parties have agreed that the Court will retain jurisdiction of this litigation until June 30, 2007, at which time this case will be dismissed with prejudice except as to the claims for prospective declaratory and injunctive relief of class members who have not been discharged from the DSis, unless there is a pending motion asserting material breach. If, prior to June 30, 2007, Plaintiffs in their sole discretion, believe the Defendants have materially breached the terms of this Settlement Agreement, Plaintiffs may move the Court to lift the stay and proceed to trial pursuant to the requirements in this Part and paragraphs 7, 8 and 9 below.
7. Plaintiffs agree to give the Defendants notice, at least thirty (30) days prior to filing a motion, of their intent to proceed to trial.
8. If Plaintiffs believe Defendants have materially breached the Settlement Agreement, Plaintiffs are required to give Defendants, in writing, specific reasons why they believe the Defendants have materially breached the terms of the Settlement Agreement.
8

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 9 of 11
Defendants shall provide a written response to the Plaintiffs' notification within 15 days of its receipt. The Defendants' response shall contain an outline of the steps the Defendants took to investigate the issues the Plaintiffs' notice addressed, the results of the investigation and a specific plan for addressing the described problems. The response may contain a request by the Defendants to extend the Agreement for a negotiated and agreed upon period of time. If no corrective action is anticipated by reason of technical impracticality, funding constraints, or legal considerations, the Defendants' response shall include the reason and any statutes, regulations or technical bases upon which they are relying. Plaintiffs agree to advise the Defendants of their acceptance or rejection of the Defendants' response within 5 days of its receipt.
9. If the Parties are unable to reach agreement on curing the systemic problems identified in the Plaintiffs' notice letter, Plaintiffs may then, within 5 days, move the Court to lift the stay and seek a resumption of the litigation.
10. If the stay is lifted, the Parties agree that they need and will jointly request that the Court give them at least six months for discovery with a two-month discovery cut-off prior to trial.
11. The Parties agree that during the period of abatement contemplated by this Agreement, all discovery is stayed and will not be resumed unless or until the stay is lifted.
12. During the life of this agreement, the Defendants specifically reserve the right to change, alter, amend or rescind the manner in which they provide developmental services, so long as such amendments, alterations or changes conform to federal constitutional, statutory, regulatory, or legal minima. Plaintiffs have the right to challenge in this action any such change, alteration, amendment or rescission only on the grounds that it fails to conform to federal
9

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 10 of 11
constitutional, statutory, regulatory or legal minima, and that such change leads to a material breach of this agreement.
13. Prior to requesting any amendment of the Medicaid State Plan that affects rights secured by this Agreement, Defendants will give reasonable notice to the Advocacy Center of their intent to seek such an amendment. The Parties agree that if Defendants request a waiver for any provision of federal law applicable to the delivery of Medicaid or other developmental services and the waiver is granted by the United States Departments of Health and Human Services or the Center for Medicare and Medicaid Services as the case may be, Defendants will not be deemed to be in non-compliance with the terms of this Agreement.
14. The Plaintiffs agree to waive attorneys' fees and costs in this case, so long as Defendants do not materially breach the terms of this Agreement. In the event that Plaintiffs seek to resume litigation of the merits of the underlying claims in this action, and are awarded relief on the merits, Plaintiffs reserve the right to seek the award of reasonable attorneys' fees and costs since the inception of this litigation. Defendants also reserve the right to challenge any such request for attorneys' fees and costs.
I5. All Parties and their counsel will use their best efforts to obtain Court approval pursuant to Rule 23(e) ofthis Agreement.
16. The Parties' breach, or alleged breach, ofthis Agreement (or ofthe terms contained herein) will not be used by any party as a basis for any further litigation.
17. Each of the signatories to this Settlement Agreement on behalf of the Defendants represents that he or she will take all necessary steps to comply with the requirements of Florida Statute§ 45.062, Fla. Stat. (2003).
10

Case 1:98-cv-00673-JEM Document 293 Entered on FLSD Docket 05/21/2004 Page 11 of 11

IN WITNESS WHEREOF, the Parties to this Settlement Agreement have executed the
,If:
same as ofthe _if..:- day of May, 2004.

For Plaintiffs:

For Defendants:

ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC.
~~~
HUBERT GRISM General CounsellActing Executive Director Fla. Bar No. 016678 1000 N. Ashley Drive, Suite 513 Tampa, Florida 33602 813/233-2920 FAX: 813/233-2917
ELLEN M. SAIDEMAN, ESQUIRE Fla. Bar No. 038751 Roger Williams University Ralph S. Papitto Law School Ten Metacom Avenue Bristol, Rhode Island 02809

CHARLES J. CRIST, JR. ATTORNEY GENERAL
/
STEPHANIE A. DANIEL Senior Assistant Attorney General Fla. Bar No. 332305 CHESTERFIELD SMITH, JR. Chief, State Programs Branch Senior Assistant Attorney General Fla. Bar No. 0852820 Office of the Attorney General The Capitol, Suite PLOt Tallahassee, Florida 32399-1050 850/414-3300 FAX: 850/488-4872

STEVEN J. SCHWARTZ, ESQUIRE ROBERT D. FLEISCHNER, ESQUIRE Center for Public Representation 22 Green Street Northampton, Massachusetts 01060

11

 </s> Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
SHELYNDRA BROWN, by her mother and next friend, JESSE O'NEIL, et al.,

. -. ..... IS f; i 2: 44

l ...
~.J.

I CT·.'
, - - I,.,\ /il

Plain tiffs,

vs .

CASE NO.: 98-673-CIV-MARTINEZ/DUBE

.JEB BUSH, in his official capacity as Governor of the State of Florida, et al.,

Ut'ft·ndanh.
_ _ _ _!

AMENDEQ.SF.TTI.t: l\1 t: NT AG REEM F.NT

The Plaintiff<;, as representatives of the ccrtificd class. and Defendants have reached an agreement as to a plan for settling this littgatton. Thc Parties arc hereby filing this Settlement Agreement (Agreement or Agreement of thL· Parttes) v.·ith the Court. and ask that the Court approve the AgreL·ment pursuant to Fcd. R. <·,, P. 23(e). which approval is a rondition precedent to the Agreement's effectiveness. I hL· Parties jointly enter this Agreement. llpon approval of the Agrcl'mcnt hy the Court. all ltutltn proceedings in this case \viii he stayed or abated until no later than June lO. 2007. as dt~l·ttso.,L·d further below in Part Ill. paragraph(,_

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 2 of 12

I. DEFINITIONS

1. "DD Waiver" means the Florida Developmental Disabilities Home and

Community Based Services Waiver.

2.

The "Supported Living Waiver" means the Supported Living Home and

Community Based Services Waiver.

3. The "developmental disabilities waiting list" means the waiting list maintained by

the Department for persons seeking enrollment on either the DD Waiver or the Supported Living

Waiver.

4.

"lkpartment" means the Department of('hildrcn and Family Services.

S.

"Advocacy Ccnlt:r" means the Advocacy Center for Persons with Disabilities,

Inc.

<>.

"Systemic problems or deficiencies" shall mean problems or deficiencies which

arc common in the Defendants' compliance with the requirements of this Agreement and

inconsistent with the tenns of this Agreement. Isolated instances of deficiencies or problems in

com pi iance with the requirements of this Settlement Agreement. without evidence of more

pcrvasin.· conduct, arc not "systemic" in nature.

7.

"J>SI" means any of the four (4) I>n dopmcntal Services Institutions which arc

owned and nperated hy the State of Florida. lhl· anonym "))Sis" shall he used to refer to all

l(lur (4) of the Ikvclopmcntal Services lnstttut1ons

X.

The tcml "lkfcndants" shall rrkr In the named lkfcmlants in this case.

)

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 3 of 12

9.

"Material breach" shall mean systemic deficiencies in compliance with the

requirements of the Settlement Agreement. Minor or isolated delays in compliance, without

evidence of more systemic deficiencies shall not constitute material breach.

I 0. "Class members" shall refer to members of the class as certified by this Court.

II. PLAN OF COMPLIANCF:

Tht: lkft.:rH.Jants agree to do the following to settle this action:

I.

The support planning process for all individuals residing in the DSis will first

delt.:rminc the.: supports and services that the individual needs to live in thl: community. The

proc<.:ss will hL" hast:u upon a positive view of the individual's ahilitics and skills. Based on the

ddcnllillatJoll of' tht: supports and services that the inuiviJualn<.:<.:us to liv<.: in the community, the

tr~:atm~.:nt tca111 will then make a recommendation on whether th~: individual is appropriate for

commun1ty plact.:mcnt.

lh~: D~:partment will hegin to administer the Individual Cost (iuideline tool on

May I. 2004. ;md will implement the tool for all individuals who arc rt.:siding in DSis. hy May I,

2005.

~.

l>unng the tenn of this Agreement. the lkpartrncnt wdl prondt: l·opics of all

ronlllltlllll~ pLKcnJcnt or discharge plans f(lr l>Sircsidcnts to the Advocacy ('enter. as counsel

fill" the rlass. wathmtcn duys of completion of the plan. hut at least tlurty days prior to discharge.

unless the I >SI rcsHknt or his or her guardian or guardian ad litem opposes thl: provision of such

n>pics to till.' Advol'acy ('enter.

4

lhc l>epartmcnt will comply Wtlh Policy 1111 02-01 (l>uc Prncc.:ss Policy)

impkllll"JJtnl on !\lay I. 2002, or illllcrHimcnts In this policy, as it rcbtc, to alldlviduals residing

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 4 of 12

at the DSis who seek enrollment on the DD Waiver or the Supported Living Waiver, including

adverse detenninations made on requests for particular waiver services.

5. During the term of this Agreement, the Department will provide copies of any due

process letters for DSI residents to the Advocacy Center, as counsel for the class. within ten days

of issuance, unless the DSI resident or his or her guardian or guardian ad litem opposes the

provision of such copies to the Advocacy Center.

6. This Agreement itself creates no right to monitor the adequacy of community-

hascd placerm:nts. To the extent that DSJ residents hclicve that the packag~.: of community-hased

supports and "<..:rvic~.:s, or the alkrnativ~.: placement they arc hcing offl:r~.:d 1s ina<kquat~.:, that

inadnJU<KY rnay h~.: addr~.:sscd in fair ht:arings s~.:paratc from this litigatJoJJ.

7. The Department will develop and implement an education and training program

suhstantially similar to what has been utilized at Landmark, for trcatmmt ll:am mcmhcrs and

other ()Sis staff designed to ensure that infonncd professional judgmt:nts art: made ahout

commun1ty placement and services. Defendants retain the flcxihility to mod1fy the program

hased on hcst practices and experience.

X

J"hc l'duration and training program will include a dcsu 1p11on of the services and

supports <J\;ul<~hlc to people with developmental disahilitics in the ronJIIIIIIJJty. the profi:ssional

standards till· dt'lcrmining how persons with developmental disahiht1cs r.111 hcst he served in the

conHlllJJHty. 01nd the benefits of community Jiving.

').

I"he l>cpartment wrll provide nn cdur at ion program. -;uh-,l.tnt Jail y s11111lar to what

has hn·n ut IIJ;cd at I.and111ark. fi1r consunwrs. t;ulli Iit:s, guardians. and ~~11;11 dJail 01d voc;ttcs.

lkfi:ruLlllts 1da1n the tlnJhJiity to modify the program based o11 hcst pr.tr!Jn·s and cxpcrit:nt:e.

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 5 of 12

The program will include a description of:

a.

the services and supports available in the community;

b. the experiences of people with developmental disabilities who live in the

community; and

c.

the professional judgment concerning the benefits for persons with

devcloprnental disabilities to live in the community.

I0. By July I, 2004, the Plaintiffs and the Department will work together to develop

the outline and materials for the family education program. However, the final content of the

educational program outline and matenals will be in the sole discretion of Department. The

Plaintift:'> and the Department will wopcratc: in implementing the program.

I I. The Department will close Landmark no later than June 30, 2005 and will develop a plan for closure of Gulf Coast Center by June 30, 2005. 1 The plan will include those

actions necessary to close the facility by July 1, 2010.

12. By June 30, 2007, the Department will reduce the combined census of the DSis

by at least 180 individuals, at a rate of 60 persons per year. At least 85% of the 180 persons will

be enrolled on the DD Waiver or the Supported Living Waiver. The death of a DSI resident

shall not count toward census reduction. Additionally, to the extent that the Legislature

appropriates funding to serve persons from the developmental disabilities waiting list, there are

residents of the DSls who are ncar the top of that waiting list who would likely he served if the

funding is available to serve the waiting list. For fiscul year 2004-200). to the extent that fi.uHhng

11Thc Partics understand and agrcc that thc actual closure of( ;u)f( 'oast ('enter will not he ;Kl'lllllphsiH:d during the life of tlus Scttlc!lll:nt Agrc:c:mc:nt.
5

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 6 of 12
is appropriated to address either the DO Waiver or the Supported Living Waiver, the Department will serve up to 50 class members from the developmental disabilities waiting list in the rank order they appear on the waiting list. These class members shall he in addition to the census reduction of 60 persons for the fiscal year 2004-2005. Should funding he available and the Department is able to serve more than 50 class members from the developmental disabilities waiting list in the rank order they appcar on the waiting list, then any additional persons served in fiscal year 2004-2005 shall count toward the 60 person census reduction requirement for fiscal year 2005-2006.
11. For fiscal years 200)-2110(J and 2006-2007, to the extent that the Legislature appropriates funding to address the developmental disabilities waiting list, and there arc persons from the DSis who arc enrolled on the DO Waiver or the Supported Living Waiver from the.: dcvcloprncntal disabilities waiting list. those individuals would he counted toward the 60 person overall census reduction for each li-.;cal ycar. Nothing in this Agreement shall he interpreted to deny services to any individual who would otherwise he served by the DD Waiver or the Supported Living Waiver hascd on ran"- order and the availability of funding for services.
14. The ahovc-menttoncd l·cnsus reduction cannot he an:ornplishcd ifthcrc arc prolon~ed delays in the dischar~c.: ptocl:ss (or the process leading up to ultimate discharge). The parties agree to work together to avotd any unnccessary dclays in the discharge process.
15. The Department a~rcl's that additional funding is necessary to an:omplish the phasing down of the ccnsus of the IlSis as noted ahove. This funding must hc sufficient to provtde scrviccs to individuals tran ... tttoncd from the l>Sis inthcir tirst yc<tr tothc l>l> W;Li~tc.:t ot th1..· Supportcd I.iving Wai\'cr.

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 7 of 12

16. The Department has already submitted a Legislative Budget Request seeking the

necessary funding to move 60 persons out of Landmark for fiscal year 2004-2005 and to serve

approximately 3,200 persons from the developmental disabilities waiting list. This is also

included in the Governor's Budget Recommendations.

17. For fiscal years 2005-2006 and 2006-2007, the Department will submit a

Legislative Budget Request seeking tht: necessary "start up" funding necessary to accomplish the

census reduction activities described in paragraph 12 above in each of these respective fiscal years. The I .egislativc Budget Request shall seck the amount of funding necessary to provide services to individuals transitioned from the I>Sls in their first year on the DD Waiver or the Supported Living Waiver.

18. The Department will utilize its best efforts to secure the funding described in

paragraph I 7. I 9. If. despite taking the actions described above. the Legislature fails to adequately

fund the Department's budget in a manner which prevents the Department from implementing

the census reduction described in this agreement, then the failure to comply with the provisions

of paragraphs 12 and 13 in this Part will not he deemed to he a material breach of the

J\gll"l"IIICill.

Ill. Rt:SOI.lJTION

I.

The Parties ngrcc that the Plan of ( 'ompliance set f(H·th in Part II, paragraphs 1- I 'J

above. resolves all issues which have hecn r<uscd in the plcadin~s in this cause, and should he

1111 pkrncnted.

7

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 8 of 12

2.

The parties have entered into this Agreement in order to avoid the uncertain

outcome of litigation. Nothing in this Agreement should be constmed as an admission of

liability by Defendants, and cannot be used as an admission by either party in this or any other

proceeding. Neither this Agreement nor any action to carry out this Agreement is or may be used

as an admission by or against the class members or class counsel regarding the lack of merit of

the claims asserted. The parties agree not to use this Agreement or any of its terms or provisions

in any other case or matter to argue that any party has conceded that any particular action must

he taken or not taken.

1.

This Agreement. including the Plan of Compliance, is the product of multiple

kngthy nq~otiation sessions, and compromise hy the Plaintills. the Plaintiff Class, and the

I >c fi.:ndants.

4.

To help ensure effective implementation of the Plan of Compliance, the State

Ikkndants have received input, through counsel from the ('lass Plaintiffs, who arc the intended

hcndiciaries of the Plan of Compliance.

5.

The Department shall provide quarterly reports to the Advocacy Center and to the

kad plallltitls' attomey (as designated by the Advocacy ('enter) of its progress in implementing

th1s AgrLTIIH:nt. At the request of either party. a meetlllg to lhsn1ss implementation issues shall

ht· sd1L·dulcd within ten days.

h.

The Parties have agreed that the ( 'ourt will n:tam jmisdiction of this litigation

1111td June .lO. 2007, at which time this case wJII he disnusscd with p•t·judicc except as to the

d;ums l\11· prospective dl'daratmy and injulll.:\1\'C relief of dass lllt'lllhas who h;1ve not been

d1-..l·hargcd from the l>Sls. unless there is a pnuhng mot1o11 asscrt111g material breach. If. prior to

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 9 of 12

June 30, 2007, Plaintiffs in their sole discretion, believe the Defendants have materially breached

the tenns of this Settlement Agreement, Plaintiffs may move the Court to lift the stay and

proceed to trial pursuant to the requirements in this Part and paragraphs 7, 8 and 9 below.

7.

Plaintiffs agree to give the Defendants notice, at least thirty (30) days prior to

filing a motion, of their intent to proceed to trial.

S.

If Plaintiffs believe Defendants have materially breached the Settlement

Agreement, Plaintiffs arc required to give Defendants, in writing, specific reasons why they

hclievt.: the lkfendants have materially breached the tenns of the Settlement Agreement.

I kkndants shall provide a wrillen response to the Plaintiffs' noli tical ion within 15 days of its

receipt. The IkfcJH.lants' response shall contain an outline of the ... teps the IkfcnJants took to

ill\·estigate the issues the Plaintiffs' notice addressed, the results of the investigation and a

specific plan for addressing the described problems. The response may contain a request by the

lkkndants to extend the Agreement for a negotiated and agreed upon period of time. If no

oJJTective action is anticipated by reason of technical impractu.:allty, funding constraints, or legal

con-.;idcJ at ions. the Defendants' response shall include the reason and any statutes, regulations or

ll"rlunral hases upon which they arc relying. Plaintiff,. agre~· tu adv1sc the Defendants of their

al·rl"JlLIIIl"C or rejection of the l>cfcndants' response WJtlun :'days ul 1ts receipt.

'J

If the Parties arc unable to reach agr~'l"llll'JJI un r111 111g tlu: systemic problems

ukntlfil'd 111 the Plaintiffs' notice letter, Plaintiff,. may then. wJtlun 'I days. move the Court to litl

thl' stay and seck a resumption of the litigation.

l)

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 10 of 12
I0. If the stay is li fled, the Parties agree that they need and will jointly request that the Court give them at least six months for discovery with a two-month discovery cut-off prior to trial.
II. The Parties agree that during the period of abatement contemplated by this Agreement, all discovery is stayed and will not be resumed unless or until the stay is lifted.
12. During the life of this agreement, the Defendants specifically reserve the right to change, alter, amend or rescind the manner in which they provide developmental services, so long as such amendments. altcrations or changes conform to federal constitutional, statutory, n.:gulatory, or legal minima. Plaintiffs have the right to challenge in this action any such change, altcration, amcndmc:nt or rcse1ssiun only on the grounds that it fltils to cunfom1 to fcdcral constitutional, statutory, regulatory or legal minima, and that such change leads to a material breach of this agreement.
ll. Prior to requesting any amendment of the Medicaid State Plan that affects rights secured hy this Agreement. l>efcndants will give reasonable notice to the Advocacy ('enter of their intent to seck such an amendment. The Parties agree that if Defendants rc4uest a waiver for any provision of federal law applicable to the delivery of Mcdrcaid or other devclopmental s<.:rvic.:cs ami the w;uver is ~r01ntcd by the United States l>epartnu.:nts of llealth and !Iuman Scrvit·cs or the ('enter f(,r M~:,hcare and Medicaid Services as the case may he, Defendants will nnt he deemed to he 111 norr-rompliance with the terms of this A~reemcnt.
14. The Plaintiffs a~ree to waive ullomeys' fees and costs 111 this rase, so Jon~ as lkft:ndants do not matnially hrcach the terms of this Agreement. lnth~: ~:vcntthat Plaintrffs scek to n:sumc litigatinn nfthc merits ofthc undcrlying c.:laims rnthrs al'lrou, and ar~: awardcd
10

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 11 of 12

relief on the merits, Plaintiffs reserve the right to seek the award of reasonable attorneys' fees

and costs since the inception of this litigation. Defendants also reserve the right to challenge any

such request for attorneys' fees and costs.

15. All Parties and their counsel will use their best efforts to obtain Court approval

pursuant to Rule 23(e) of this Agreement.

16. The Parties' hreach, or alleged breach, of this Agreement (or of the terms

contained herein) will not he used hy any party as a basis for any further litigation.

17. Each of the signatories to this Settlement Agreement on behalf of the I kfi:ndants

repn.:s~:nts that he or she wdltake all necessary steps to comply with the requirements of !-'lorida

Statute ~ 45.0(,2, !·Ia. Sial (2003 ).

IN WITNESS\\ HEREOF, the Parties to this Settlement Agreement have ex~:uJt~:d the
same as of the j~y of June, 2004.

For Plaintiff.<;:

For Defendants:

ADVOCACY ('f:Nli·R H >K PERSONS WITH I>ISABIUTII·:s. I'.;<.
;L~-:#~
lllliW.RT <iKISSOM Cicneral ( 'ounsd/ Al"l111~~ I ,~·n1t1\'l.' llircctor Fla. Bar No. 0 I hh 7X I000 N. Ashley I >n\'c, SuJtl· "~I ' Tampa, Florida .nho2 XI VD.1-2 1J20 FAX: XU/D:\-2'JI7
1:1.1.1~N M. SAII>l·MAN. I·SC)IIIRF 1-'la. Bar No. <UX7S I Koger Williams l ln1\ cl-.11\ RalphS. Papitto 1 a\\ Sl·luud

CHARLES J. CRIST. JR. ATTORNEY GENERAL
STH'IIANIE A. DANIEL Sl·nior Assistant Attorney ( ietH.:ral Fla. Bar No..n2)05 <'III·:STI~RFIU .1> SMITH . .JR. ( 'hieL State Programs Branch Sl·nior Assistant Attorney ( iclll'tal 1:1a. Bar No. OX52X20 ( >flirc of the Attornt.:y ( icncral The ( 'apitol, Sui I!.: 1'1.0 I Tall;1hassce. J.'londa _,2.N'J IOSO SS0/414-.1.100 I:AX: S50/4SH-4S72

II

Case 1:98-cv-00673-JEM Document 296 Entered on FLSD Docket 06/17/2004 Page 12 of 12 • Ten Metacom Avenue
Bristol, Rhode Island 02809 STEVEN J. SCHWARTZ, ESQUIRE ROBERT D. FLEISCHNER, ESQUIRE Center for Public Representation 22 Green Street Northampton, Massachusetts 0 I060
I 2

 </s> Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 1 of 24

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION CASE NO.: 98-673-CIV-MARTINEZ/BANDSTRA

AUG 11 2005
CLARENCE MADDOX CLERK U.S. DIST. CT. S.D. OF FLA.· MIAMI

SHELYNDRA BROWN, by her mother and next friend, JESSE O'NEIL, et al.,
Plaintiffs,
vs.
JEB BUSH, in his official capacity as Governor of the State of Florida, et al.,
Defendants.
____________________________ /

ORDER APPROVING SETTLEMENT AGREEMENT THIS CAUSE came before the Court upon the Parties' Joint Motion to Approve the Amended Settlement Agreement ("Agreement"). (D.E. No. 298). On December 10, 2004, the Court held a fairness hearing pursuant to Federal Rule of Civil Procedure 23(e) to determine whether the Court should approve the Agreement. At the fairness hearing, this Court heard testimony from Kerry Schoolfield, a bureau chief within the Agency for Persons with Disabilities who has administrative responsibility for all components of the developmental disabilities services delivery system which are implicated by the Agreement executed in this case, and two expert witnesses, Clarence Sundram and Rick Campbell. The Court also heard testimony of two objectors, Donald R. Stover and Viola Foster. Attorneys representing both the proposed amici Voice of the Retarded and Florida's Voice on Mental Retardation (VOR/FVMR) and a group of objectors calling themselves the "Stover

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 2 of 24
objectors" also appeared and addressed the Court. 1 In determining whether to approve the Agreement, the Court has considered the record of the case, memoranda and submissions of the parties in support of the motion for approval of the Agreement, the testimony of the witnesses at the fairness hearing, the documents entered into the record of the hearing by the parties, the letters from objectors and supporters ofthe Agreement, the statements ofthe Stover objectors made through their counsel, and the memorandum ofthe amici VOR/FVMR. For the foregoing reasons, the Agreement
is approved. I. Relevant Factual and Procedural Back2round
This action was filed on March 24, 1998 by six individuals, each of whom was then confined to one of Florida's four Developmental State Institutions for persons with developmental disabilities ("DSis"),2 on behalf of themselves and all others who were then or in the future would be confined to a DSI. Plaintiffs sought community-based placements.3 (D.E. No. 1 at 2). The Plaintiffs' factual allegations are set forth in detail in their original Complaint, (D.E. No. 1), and their proposed Amended Complaint. (D.E. No. 253). The Plaintiffs' claims were brought pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
1Although time was available for additional objectors to testify, after the parties presented their evidence in support of the Agreement, no objectors were present to testify. (Tr. 19-21, 173).
2The four DSis operated by the State of Florida are the Community of Landmark ("Landmark") in Opa Locka, Gulf Coast Center ("Gulf Coast") in Fort Myers, Sunland Marianna in Marianna, and Tacachale Center in Gainesville. (Trs. 53, 56-60).
3Community-based services are "a range of services and settings." (Tr. 54) These setting could range from someone living at home with a family member, to someone living independently, to someone living in a supported independent living arrangement where the State provides "some assistance for someone to live alone or with a roommate." !d. It could also mean living in "a small foster care facility, which is three people or less" or living in a group home with four to fifteen people. !d. The four DSJs are large institutions which are considered intermediate care facilities for the developmentally disabled ("ICF/DD"). (Tr. 57). An ICF/DD "could range in size from a sixperson ICF/DD, which is the more common size up to large facilities" such as the DSls. !d.
2

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 3 of 24
("ADA"), and the regulations promulgated pursuant to the ADA, the Rehabilitation Act of 1973, 42 U.S.C. § 1983, 29 U.S.C. § 794, the Social Security Act, 42 U.S.C. § 1396 et seq., and the regulations promulgated pursuant to the Social Security Act, and the Due Process and Equal Protection Clauses of the United States Constitution. (D.E. No. 1).
On March 10, 1999, the Court entered an order certifying a class. (D.E. No. 123). Defendants, who are the Governor and various state officials, appealed this Order (D.E. Nos. 1, 140, 253). On February 3, 2000, the Eleventh Circuit Court of Appeals issued an opinion reversing and vacating the class certification order and remanding the matter back to the Court for further action with instructions to certify the class as follows:
all individuals with developmental disabilities who were residing in a Florida DSI as of March 25, 1998, and/or are currently residing in a Florida DSI who are Medicaid eligible and presently receiving Medicaid benefits, who have properly and formally requested a community-based placement, and who have been recommended by a State-qualified treatment professional or habilitation team for a less restrictive placement that would be medically and otherwise appropriate, given each individual's particular needs and circumstances. Brown v. Bush, No. 99-11544, slip op. at 5 (11th Cir. Feb. 3, 2000).4 In its opinion, the Court of Appeals also identified the "core claims" of the named, individual plaintiffs to be "that they are institutionalized in DSis, they qualify to be transferred from DSis to less restrictive, community placements, and they want to be transferred, but there is a lack of appropriate, available, community placements." !d. at 6. On February 11, 2000, the Court issued a Revised Order Certifying Class. (D.E. No. 161). The Court set the case for trial for a two-week trial period beginning on February 23, 2004. (D.E. No. 233). On October 17, 2003, Plaintiffs filed a Motion Seeking Leave to Amend Their Complaint, to add new plaintiffs and further refine their claims.
4This opinion is also located in the record at D.E. No. 158.
3

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 4 of 24
(D.E. No. 253). In November and December 2003, the parties participated in three days of mediation with the assistance of an independent mediator. See (D.E. No. 284). As the mediation seemed likely to result in a settlement of the case, on December 29, 2003, the parties filed a Joint Motion to Stay the Case, including all pending motions. (D.E. No. 284). That motion was granted and was subsequently renewed at the request ofthe parties. (D.E. Nos. 285,290, 291).
After further, lengthy mediation and negotiations, the parties executed a Settlement Agreement on May ll, 2004, which was filed with the court on May 21, 2004. (D.E. Nos. 292293). The parties agreed to amend the Settlement Agreement to permit Defendants to utilize both the Supported Living Home and Community-Based Services Waiver ("Supported Living Waiver")5 and the Developmental Disabilities Home and Community-Based Services Waiver ("DD Services Waiver") to serve clients residing in the DSis. (D.E. Nos. 295 and 296). On June 16, 2004, the parties submitted and executed the amended Agreement. (D.E. No. 296). It is this Agreement that is before the Court for approval.
II. Leeal Standard Federal Rule of Civil Procedure 23(e) provides that settlement of a class action requires approval by the court. "[I]n class action suits, there is an overriding public interest in favor of settlement" and the approval of a class action settlement is committed to the sound discretion of the Court. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977).6 In order to approve a settlement, a Court must find that a settlement meets a two-part test. Warren v. City of Tampa,
5The Supported Living Waiver is now known as the Family and Supported Living Waiver. (Tr. 55). 6In Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October I, 1981.
4

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 5 of 24
693 F. Supp. I051, I055 (M.D. Fla. 1988). First, the Court must determine that "there is no fraud or collusion [between the parties] in reaching the settlement." !d.; see also Bennett v. Behring, 737 F.2d 982, 986 (11th Cir. I984). Second, the Court must determine that '"the settlement is fair, adequate, and reasonable."' Bennett, 73 7 F.2d at 986 (quoting Cotton, 559 F.2d at I330). The Court considers the following factors in assessing whether a settlement is fair, adequate, and reasonable:
1) The likelihood of success at trial and potential recovery; 2) The complexity, expense, and duration of litigation; 3) The terms ofthe settlement; 4) The procedures afforded to notify the class members of the proposed settlement, and to
allow them to present their views; 5) The judgment of experienced counsel for the Plaintiff class; 6) The substance and the amount of opposition to the settlement; 7) The stage of proceedings at which the settlement was achieved. Warren, 693 F. Supp. at 1055; see also Bennett, 737 F.2d at 986.
III. Analysis The Court has examined all of these factors and will discuss them in tum. A. Collusion First, in regard to collusion there is no evidence in the record which indicates there was any collusion between the parties in arriving at the settlement. Significant discovery has taken place in this case. See, e.g., (D.E. Nos. 97-108, 196,229,230,232,234,235,242,245,259,260, 262 and 264). The parties settled this case with the assistance of a mediator after nearly six months ofbargaining and six years of litigation. See (D.E. Nos. 274, 283, 285, 289, 291 and 293). Therefore, as there is no evidence of collusion, this factor weighs in favor of approval of the Agreement.
5

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 6 of 24
B. Fairness, Adequacy, and Reasonableness The Court also finds the agreement is fair, adequate and reasonable under the seven factors outlined in Warren for the reasons discussed herein.
1. Likelihood of Success at Trial and Range of Potential Recovery First, "[t]he Court is required to independently analyze the facts and the law to evaluate the Plaintiffs' likelihood of success at trial and range of potential recover." Warren, 693 F. Supp. at 1055. As the Eleventh Circuit Court of Appeals stated, the Plaintiffs' core claims are "that they are institutionalized in DSis, they qualify to be transferred from DSis to less restrictive, community placements, and they want to be transferred, but there is a lack of appropriate, available community placements." Brown v. Bush, No. 99-11544, slip op. at 6 (11th Cir. Feb. 3, 2000). The core claim in this case is governed by the Americans with Disabilities Act of 1990 ("ADA"), the federal regulations setting forth an "integration mandate," and the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999), which was issued more than a year after this case was filed. In Olmstead, the Supreme Court for the first time addressed the question of whether the ADA's bar on discrimination "may require placement of persons with mental disabilities in community settings rather than in institutions," and answered with "a qualified yes," explaining that [s]uch action is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Olmstead, 527 U.S. at 587.
6

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 7 of 24
There is no dispute that the State's treatment professionals have determined that community placement is appropriate for class members and that the class members do not oppose the transfer to a less restrictive setting. The heart of the legal dispute in this case is the question of whether placement of class members can be "reasonably accommodated." 28 C.F.R. § 35.130(b)(7) states:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. The Olmstead Court stated "[i]f, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met." 527 U.S. at 605-606. The parties state they have exchanged expert reports and their experts disagree as to whether Defendants have an effective working plan. See (D.E. No. 298 at 12). Defendants also argue that the existence of a plan is only one of the factors the Court may consider in determining whether the placement of class members is feasible. (D.E. No. 298 at 12). In addition to fact-based defenses, the Defendants have raised numerous other constitutional and other legal issues that would need to be litigated, at least on appeal, in the event that this case proceeded to trial. For example, Defendants have argued that the Integration Mandate in title 42 C.F.R. § 35.130(d) and the Social Security Act do not create private rights of action. See (D.E. No. 139 at 18 and 20). Plaintiffs disagree citing Wilder v. Virginia Hasp.
7

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 8 of 24
Association, 496 U.S. 498 (1990) which found the Medicaid "Act creates a right enforceable by health care providers under§ 1983." !d. at 509-10; (D.E. No. 298 at 13). There is some uncertainty about which interpretation of the case law would ultimately prevail on these complex legal issues.
Furthermore, the Agreement allows for the placement of members of the class more quickly. Under the Agreement, most, if not all, class members will be placed within the next three years, all Landmark residents will have the opportunity for community placement by June 30, 2005, all Gulf Coast residents will have the opportunity for community placement by June 30, 2010, and all DSI residents will receive the benefits of improved support planning and education for treatment staff and families and guardians. See (D.E. No. 296 at 3-5). Due to the uncertainty of the outcome in this case and the fact that the Agreement will more promptly address a number of Plaintiffs concerns, this factor weighs in favor of approval.
2. Complexity, Expense, and Duration of Litigation Next, the Court considers the complexity, expense and duration of the litigation. As the testimony at the fairness hearing and the previous submission of the parties indicate, this case is complex, both factually and legally. Trial, appeals and hearings in this Court after remand might take years. In the absence of this settlement, class members might have to wait for years for a resolution of the case. The expense of further litigation, including testimony and travel by nationally known experts, also would be substantial. Likewise, judicial resources are conserved by settlement. See Cotton, 559 F.2d at 1331 ("[S]ettlements contribute greatly to the efficient utilization of our scarce judicial resources."). Therefore, these factors also weigh in favor of a decision approving the Agreement.
8

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 9 of 24
3. Terms of Settlement The Court must also consider the terms of the Settlement Agreement when deciding whether or not to approve the Agreement. The Court has examined the terms of the Agreement in detail. While the Plaintiff has not received every form of relief requested in its original Complaint, there does appear to be "a genuine quid pro quo. " Warren, 693 F. Supp. at 1059. As the Court stated in Warren, it appears"[e]ach side is giving, and each side is receiving, something of value." !d. Plaintiffs have agreed to a dismissal of this case with prejudice on June 30, 2007/ "except as to the claims for prospective declaratory and injunctive relief of class members who have not been discharged from the DSis."8 (D.E. No. 296 at 8). In exchange, Defendants have agreed to make a number of changes in the way DSis are operated and in the number of DSis operated by the State. First, Defendants have agreed to determine what services are most appropriate for individuals living in the DSis. By its terms, the Agreement provides for changes to the individual support planning process. "The support planning process for all individuals residing in the DSis will first determine the supports and services that the individual needs to live in the community." (D.E. No. 296 at 3). The support planning process "will be based upon a positive view ofthe individual's abilities and skills." !d. "Based on the determination of the supports and services that the individual needs to live in the community, the treatment team will then make a
7The Court is to retain jurisdictions of this case until June 30,2007. (D.E. No. 296 at 8). 8The parties have inserted an exception to this dismissal where there is a pending motion asserting a material breach. (D.E. No. 296 at 8).
9

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 10 of 24
recommendation, based on professional judgment, about whether the individual is appropriate for community placement." !d.
Defendants have also agreed to provide for more education on community living. The Agreement provides for educational and training programs for the staff regarding the services and supports available in the community, professional standards for determining how persons with developmental disabilities can best be served in the community, and the benefits of community living. See (D.E. No. 296 at 3-4). To enable residents and their family members, guardian, or guardian advocate to provide informed and meaningful input, the Agreement also provides for an education program that will include a description of the supports and services available in the community, the experiences of people with developmental disabilities who live in the community, and the professional judgment concerning the benefits for persons with developmental disabilities of living in the community. See (D.E. No. 296 at 4-5). The Agreement also states "Defendants retain the flexibility to modify both programs based on best practices and experience." (D.E. No. 296 at 4).
Furthermore, the Defendants have also agreed to comply with Policy Number 02-01, which provides for due process for "individuals residing at the DSis who seek enrollment on the . . . [Florida Developmental Disabilities Home and Community Based Services] Waiver [("DD Waiver")] or the Supported Living [Home and Community Based Services] Waiver [("Supported Living Waiver")], including adverse determinations made on requests for particular waiver services. (D.E. No. 296 at 3- 4). These are waivers of certain requirements of 42 U.S.C. § 1396a which provides for state plans for medical assistance allowing the implementation of more
10

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 11 of 24
specialized medical plans. See 42 U.S.C. § 1396n. See also (Tr. 56); (D.E. No. 295). These waivers are a source of funding for the community-based services. (Tr. 56); (D.E. No. 295).
Defendants will also close or work toward the closure of two DSis, Landmark and Gulf Coast.9 The Agreement provides that "[b]y June 30, 2007, the Department will reduce the combined census of all of the DSis by at least 180 individuals, at a rate of sixty persons per year." (D.E. No. 296 at 5). The Agreement does not require that these 180 individuals come from any particular facility. The Agreement also states "[a]t least eighty-five percent of the 180 persons moving from the DSis over the life of the Agreement will be enrolled on the DD Waiver or the Family and Supported Living Waiver." 10 !d.
Defendants also acknowledge that additional funding is necessary to accomplish these goals. (D.E. No. 296 at 6). Therefore, Defendant Department of Children and Families ("Department") has agreed, for fiscal years 2005-2006 and 2006-2007, to submit "Legislative Budget Requests seeking the 'start up' funding necessary to accomplish the census reduction activities described above in each of these respective fiscal years." (D.E. No. 296 at 7). Defendant Department will also "seek the amount of funding necessary to provide services to individuals transitioned from the DSis in their first year" on a waiver program. !d. The
9The Agreement provides that the Defendants will close Landmark "no later than June 30, 2005." (D.E. No. 296 at 5). The Agreement provides that by June 30, 2005 the Department will develop a plan to close Gulf Coast Center. !d. Gulf Coast Center will be gradually phased down, in a similar manner to what has occurred at Landmark, and will close by July I, 2010, after the termination of the Agreement. !d.
10The Court also notes that introducing more community-based services is consistent with the stated preferences ofthe Florida Legislature. See, e.g., Fla. Stat. § 393.062 (2005). Furthermore, it is also consistent with the current demand for community-based services. While there is a large waiting list for community-based services, there are a dramatically smaller number of referrals for institutional services annually. (Tr. 63-64).
11

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 12 of 24
Agreement also provides that, if"the Legislature fails to adequately fund the Department's budget in a manner that prevents the Department from implementing the census reduction ..., then the failure to comply" with the census reduction provisions will not be deemed to be a material breach ofthe Agreement. !d.
If Plaintiffs believe a material breach of this Agreement has occurred, Plaintiffs must give Defendants notice in writing. (D.E. No. 296 at 9). Defendants may then respond and Plaintiffs are required to advise Defendants of their acceptance or rejection of the Defendants' response. !d. If the parties cannot resolve an alleged breach, Plaintiffs may seek a resumption of the litigation. !d. Based on the examination of the terms of the Agreement which exemplify the "give and take"11 between the parties, the Court finds the terms of the Agreement adequately protect the interests of each party and therefore, this factor also weighs in favor of approval.
4. Procedures Afforded to Notify the Class Members of the Proposed Settlement and to Allow Them to Present Their Views
Next, the Court considers the procedures afforded to notify the class members of the proposed settlement and to allow them to present their views. "To assess the adequacy of the notice, the Court must consider both the notice's mode of dissemination and its content." In re Prudential Ins. Co. ofAm. Sales Practices Litigation, 177 F.R.D. 216,231 (D. N.J. 1997). The Court's Order of September 2, 2004 established the manner and content of the notification to the class ofthe proposed settlement. (D.E. No. 301). In accordance with the parties' suggestion,
11 For example, in Plaintiffs original complaint Plaintiff asked that Defendants "make available a friendadvocate to each plaintiff and member of the plaintiff class to assist each in securing" different forms of relief regarding community placement Plaintiffs asked for in the Complaint. This was not guaranteed by Defendants in the Agreement. (D.E. No. 1 at 42-43). Plaintiff also asked that Defendants "establish a system to prevent abuse and neglect of people with developmental disabilites" at the DSis. !d. at 42. This system is not mentioned in the Agreement.
12

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 13 of 24
the Court ordered that notice be served on all residents of the state's four DSis and their guardians or next of kin. (D.E. Nos. 301 and 297). As the parties noted in their motion, "this procedure for providing notice is likely to reach more than just those individuals who have been identified as class members." See (D.E. No. 297). Copies of the approved Notice ofProposed Class Settlement were mailed by Defendants' agent, The Copy Shop, to the individuals who resided at DSis, and to their families and guardians. (Fairness Hrg., Exh. 1). The notice was mailed to approximately 3,189 persons. !d. Additionally, copies of the approved Notice of Proposed Class Settlement were prominently posted, for a period of at least thirty (30) days, in each home where individuals with developmental disabilities reside at each of the DSis. (Fairness Hrg. Exhs 2-5).
In this case, where notice was both mailed to class members and their guardians and their next of kin or guardian and where notice was posted prominently in each home where individuals with developmental disabilities resided at each DSI, this Court finds "the procedure used to notify the class members was reasonably calculated to notify interested parties, and adequately provided the opportunity to be heard to any interested parties." Warren, 693 F. Supp. at 1060. The Court also notes the adequacy of the measures utilized to provide notice is evidenced by the volume of objections received. The Court received a substantial volume of correspondence relating to the Agreement in this case. (D.E. Nos. 299, 303-313, 315, 318). As the Court finds that the manner in which notice was provided in this case was reasonable and adequate to ensure that both class members and affected individuals received actual notice of the existence of the Agreement, this factor also supports approval of the Agreement.
13

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5. The Judgment of Counsel for the Parties In determining whether to approve the Agreement, the Court also considers the Judgment of Counsel of the parties. The views of experienced counsel favoring a settlement are entitled to significant weight. See Warren, 693 F. Supp. at 1060 (stating "[t]he Court is affording great weight to the recommendations of counsel for the parties, given their considerable experience in this type of litigation."). Experienced attorneys from the Advocacy Center and outside counsel represent the Plaintiffs. The Advocacy Center's General Counsel, Hubert Grissom, has worked on this matter since 2001, and is experienced in class action litigation. Attorney Ellen Saideman, who has more than sixteen years of experience in the field of class action litigation involving individuals with disabilities, has remained active in the case as outside counsel since relocating from Florida to Rhode Island in 2000. Class counsel Robert D. Fleischner and Steven J. Schwartz of the Center for Public Representation in Massachusetts, each have more than thirty years experience in this type of litigation, and the negotiation, and implementation of structural reforms on behalf of individuals with mental and developmental disabilities confined to institutions. See (D.E. No. 220 and 221). In light ofthe experience ofPlaintiffs' counsel, this Court gives great weight to their views, and their support of the Agreement weighs in favor of approval.
6. Substance and Amount of Opposition The Court also considers the substance and amount of opposition in determining whether to approve the Agreement. The opposition to the Agreement is almost entirely by non-class members who oppose community services. Many correspondents wrote several letters, and in several instances several relatives, neighbors or friends of family members, wrote on behalf of
14

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 15 of 24
the same individual. Some letters failed to identify an individual, class member or otherwise, on whose behalf the letter was purportedly submitted, and some letters indicated that the writer had no connection to any DSI resident or, in one case, even with Florida. Numerous letters were not in the proper format nor served on the parties as required by the Notice issued pursuant to the Court's Order. (D.E. Nos. 297 and 301).
The largest group of objectors calls itself the "Stover objectors" and is a group of eighty individuals who are the parents or guardians of residents of Gulf Coast, Sunland, or Tacachale. The Stover objectors concede in their written submissions that residents who have not properly and formally requested community placement are not class members, so that any resident or legal guardian who has not sought community placement is a non-party objector. Non-party objectors may not veto a settlement agreement under Federal Rule of Civil Procedure 23(e). See Gould v. Alleco, Inc., 883 F.2d 281,284 (4th Cir. 1989) ("We hold, therefore, that non-class members have no standing to object, pursuant to a Rule 23(e) notice directed to class members, to a proposed class settlement."); Assoc. For Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 473 (S.D. Fla. 2002) ("Under Fed. R. Civ. P. 23(e), non-class members are not permitted to assert objections to a class action settlement."). Furthermore, the objectors do not have a legally enforceable right, which is impaired by this Agreement, to the continued operation of a particular DSI. As the one court has noted, "[t]he State has always possessed the power- and frequently exercises the power- to relocate its residents for its own administrative needs. If it so desired, the State could unilaterally close any of the State [institutions] for economic reasons or otherwise." Lelsz v. Kavanagh, 783 F. Supp. 286, 298 (N.D. Tex. 1991).
15

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The Court notes that at the fairness hearing, the Stover objectors made an oral motion to intervene. (Tr. 19). The Court denied this motion as untimely. (Tr. 19). It is unclear whether the objectors were arguing that they should have been allowed to intervene under Federal Rule of Civil Procedure 24(a) which relates to intervention as of right, or Rule 24(b) which relates to permissive intervention. However, it is clear that both 24(a) and 24(b) state that a party is permitted to intervene "upon timely application." Fed. R. Civ. P. 24(a)&{b) (emphasis added). In considering whether a motion to intervene was timely filed, this Court considers:
(1) the length of time during which the proposed intervenor knew or reasonably should have known of the interest in the case before moving to intervene; (2) the extent of prejudice to the existing parties as a result of the proposed intervenor's failure to move for intervention as soon as it knew or reasonably should have known of its interest; (3) the extent of prejudice to the proposed intervenor ifthe motion is denied; and (4) the existence of unusual circumstances militating either for or against a determination that their motion was untimely. Georgia v. United States Army Corps ofEng 'rs, 302 F.3d 1242, 1259 (11th Cir. 2002) (citing Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989)). First, in considering the length of time during which the proposed intervenors have know oftheir interest, the Court finds the Stover objectors knew of their interest long before the oral motion was made in the middle of the fairness hearing on December 10, 2005. Although the collective Objection to Class Settlement was filed by the Stover Objectors on November 23, 2004, a number of the Stover objectors were among the first to send this Court letters regarding the proposed settlement agreement. Viola Foster, who is listed as one of the Stover objectors, sent an objection to this Court on July 28, 2004 stating that she learned about the possible closure ofGulfCoast Center and this case in an article printed in the News-Press of Fort Meyers on July 12, 2004. (D.E. No. 304). Donald Stover, another Stover objector, presumably for which the
16

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objectors are named, sent a letter to this Court on August 2, 2004. !d. Kay Duncan, a Stover Objector, sent a letter to this Court on August 5, 2004 voicing her concerns about the proposed settlement agreement. !d. In a letter postmarked August 10, 2004, Jean Eisenberg, another Stover objector, expressed her concern about the closure of Gulf Coast. !d. On August 18, 2004, Sarah Jones, another Stover objector, wrote the Court to express her concerns about the possible closing of Gulf Coast. !d. Constance Davis, yet another Stover objector sent the Court a letter on August 22, 2004. !d. Another Stover objector, Norman Stowers, sent the Court a letter on August 23, 2004. !d. The Court also notes that evidence was presented at the fairness hearing that notification was sent to all current residents of the DSis and all legal guardians or next of kin of these current residents by October 18, 2004. (Defense Exh. 1, fairness hrg). See also (D.E. No. 297). The Stover objectors have not offered any explanation for why they had to wait until the middle of the fairness hearing to move to intervene in this case.
The Court also finds the parties would have been prejudiced if the Stover objectors had been allowed to intervene at the fairness hearing. The hearing was in progress at the time the Stover objectors made their oral motion to intervene. There is no indication that the parties were aware or had prepared a response to the Stover objectors' impromptu motion to intervene. The granting of the Stover objectors' oral motion to intervene in the midst of the fairness hearing would most likely have caused the hearing to have been adjourned at that time, and the intervention of the Stover objectors into the case would have interjected other legal issues 12
12The Court notes the Stover objectors also made a last-minute oral motion to decertify the class in the middle of the fairness hearing arguing that a number of the original class members claims had become moot with the closure of Landmark. (Tr. 16-19). The Court finds it unnecessary to reach this argument in light of its findings that the Stover Objectors did not have standing and that their motion to intervene was untimely. However, the Court notes that where original class members' claims are found to be moot, this does not require a decertification of the class. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 406 n.l2 ( 1977) (stating that where a
17

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which would have impeded the resolution of this case, which is already seven years old.
Furthermore, it would have required there-notification of the class for another fairness hearing.
See (Fairness Hrg., Exh. 1) (stating notices were sent to 3,189 people). The Court also finds the
extent of the prejudice to the Stover objectors in denying their motion to intervene is not great.
The Stover objectors were still permitted to address the Court at the hearing and present a post-
hearing memorandum. The Court also notes for the reasons more fully discussed below that the
Court has also examined the Stover objectors concerns and finds these concerns have been
sufficiently addressed. Other than the factors already discussed, there have not been any unusual circumstances which militate for or against allowing the Stover Objectors to intervene. 13
The Court also notes that under Federal Rule of Civil Procedure 24(c) "a person desiring
to intervene shall serve a motion to intervene upon the parties." Rule 24(c) also requires the
motion to "state the grounds therefor and ... [to] be accompanied by a pleading setting forth the claim or defense for which intervention is sought." In this case, no motion has ever been served.
The Stover objectors simply made a last minute oral motion in the middle of the fairness hearing
to intervene in this case. Therefore, the Court finds the intervention of the Stover objectors in
this matter is untimely and improper.
class had already been certified "the class claims would have already been tried, and, provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyed because subsequent events or the proof at trial had undermined the named plaintiffs' individual claims."). See also Scott v. City ofAnniston, Ala., 682 F.2d 1353, 1356-57 (11th Cir. 1982) (finding "[i]t was improper for the District Court to decertify the class on the grounds that the named plaintiffs, who lost because non-common individual claims were resolved against them, were inadequate representatives after the class has prevailed on the issue of liability."). The Court notes that in arguing that the class should be decertified, the Stover Objectors did not advance an argument that the original certification of the class was improper. Therefore, even if this Court were to consider the merits of this motion it would deny it.
13At the hearing, the Stover Objectors stated that they were requesting to be allowed to intervene "in fairness and in due process." This vague statement does not represent an unusual circumstance. In fact, it is most likely an argument that could be made in support of any motion to intervene.
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Furthermore, even if these objectors had standing or were permitted to intervene, the Court would find their objections unfounded. The Court has examined all of the objections in this case. Many of the objectors are elderly parents of disabled adult children who have been in these institutions for many years. The parents write that they are unable to take care of their disabled adult child in their home at this point in their lives and that they worry about what will happen to their loved one if the institutions are closed. Other objectors write to relate bad experiences their loved one has had in a community home to support their contention that institution-based care is better than community-based care. Still others write to praise the institutions and the medical care their friend or loved one receives in the institutions. 14 The Court recognizes and understands the concerns the objectors are expressing but finds these concerns have been adequately addressed.
First, the objectors' concern that they will be forced to take their disabled relative into their home to care for him or her if an institution closes is unfounded. Residents at the institutions that are closing are not going to be forced out on the streets or into the homes of their elderly parents. Even with the closure ofboth Gulf Coast and Landmark, there will still be two public DSis, Tacachale and Sunland Marianna, and approximately ninety private intermediate care facilities for developmentally disabled ("ICF/DDs") available to provide community-based care. (Tr. 73, 89, 94). Furthermore, the Court notes that there is also a misconception that all the institutions in Florida will be closing and there will be no place for the residents of these institutions to go except to community-based care.
14The Court also notes that there are also letters from particular interest groups, some of which support the settlement agreement and some of which do not.
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The Court notes that nothing in the Agreement abrogates the provisions of Title 42 U.S.C. §1396n(c), which governs choice ofthe individual. 42 U.S.C. §1396n(c)(2)(C) provides:
A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that-(C) such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed ofthe feasible alternatives, ifavailable under the waiver, at the choice ofsuch individuals, to the provision ofinpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded; (emphasis added). This provision is often referred to as the "freedom of choice" provision. See Cramer v. Chiles, 33 F. Supp. 2d 1342, 1351 (S.D. Fla. 1999) (referring to this provision as the freedom of choice provision). Nothing in the Agreement obligates an individual or guardian or other legally authorized representative to choose a home and community-based waiver placement if the individual in fact wants an institutional placement. However, the Agreement does not guarantee an individual a specific institutional placement ifhe or she chooses institutional placement. (D.E. No. 296 at 5). The plain language of 42 U.S.C. §1396n(c)(2)(C) also does not indicate any entitlement to a specific institutional placement. See (Tr. 145). See also Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003) (the Medicaid statute does not create a right to have an institution or facility nearby the recipients home). Furthermore, if an adverse decision is made regarding a request for a Medicaid placement, affected individuals retain the right to challenge those decisions through the fair hearing process required by federal law. See 42 C.F.R. § 431.230. Additionally, state law also affords protections to the extent that a state decision affects the substantial interests of an individual. See Fla. Stat.§§ 120.569, 120.57. Additionally, if an adverse decision is made at a
20

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fair hearing or in the administrative process, state law affords a right to appeal to the state District Court of Appeal. See Fla. Stat. §120.68.
The Court also finds a number of safeguards have been put in place to ensure that an informed decision is made as to whether a person is placed in a community-based placement and that adults that choose to move to a community-based placement have a smooth transition. The Agreement provides for an educational program for "consumers, families, guardians, and guardian advocates" that includes information about the supports and services available in the community, and the experience of individuals actually living in the community. (D.E. No. 296 at 4-5). Kerry Schoolfied, the bureau chief for the Agency for Person with Disabilities, testified that for those individuals who have already indicated they want to leave a DSI, they have begun bringing providers to the families, for them to meet and discuss concerns. (Tr. 52, 72). Families will also visit homes in the community. (Tr. 72-73). Also, in the actual transition plan, efforts will be made to ensure that everyone has the information needed to make good decisions about the best way to care for that individual's needs. (Tr. 73). Furthermore, the Agency's area offices conduct monthly monitoring of licensed residential facilities. (Tr. 82). This monitoring determines whether the people are safe, the environment is safe, there are appropriate medication administration records, and it determines whether there are any potential licensure deficiencies in advance of annual licensure inspections. (Tr. 82). Additionally, the Waiver Support Coordinator provides case management services and also has regular contacts with the individual, and is able to monitor the safety of the individual and the services provided. (Tr. 107-1 08). The Waiver Support Coordinator also acts as an advocate for the individual. (Tr. 107).
21

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Therefore, the Court finds the majority of the objectors did not have standing to object, the Stover Objectors could not properly intervene, and many of the concerns of the objectors are addressed by the Agreement or existing law. Furthermore, the Court notes that it may approve a settlement agreement despite opposition of class members, and even of named plaintiffs where the Court finds the agreement is not a product of collusion and is fair, adequate and reasonable. Ayers v. Thompson, 358 F.3d 356, 373 (5th Cir. 2004) ("a settlement can be approved despite opposition from class members, including named plaintiffs"). Therefore, this factor also weighs in favor of approving the Agreement.
7. Stage of Proceedings at which Settlement was Achieved This Court also considers the stage of proceedings at which settlement was achieved in determining whether to approve the settlement. "The Court must consider whether sufficient discovery has been conducted by the parties to allow them to reach an informed evaluation of the relative merits on the case." Warren, 693 F. Supp. at 1060. "The law is clear that early settlements are to be encouraged, and accordingly, only some reasonable amount of discovery should be required to make these determinations." Ressler v. Jacobson, 822 F. Supp. 1551, 1555 (M.D. Fla. 1992). However, in this case the agreement was entered into after substantial discovery and investigation. In this case, the Agreement was executed after the case was pending for six years, after extensive discovery had been conducted, and just before the commencement of the trial period. See (D.E. Nos. 233, 274, 283, 285, 291 and 293). The parties have deposed numerous witnesses. See (D.E. Nos. 97-108, 229, 230, 232,234,235, 245, 259, 260, 262, and 264). Various motions to compel were also filed in the matter. See (D.E. Nos. 196 and 242). The parties have informed
22

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the Court that they have exchanged expert reports, and the Defendants have deposed the Plaintiffs' experts. (D.E. No. 298 at 11); see also (D.E. No. 273 and 280). The parties have also informed the Court that "Plaintiffs and their experts have reviewed thousands of pages of relevant documents produced by the Defendants." (D.E. No. 298 at 11 ). As in Ressler, discovery has reached an advanced stage where the parties '"certainly have a clear view of the strengths and weaknesses of their cases."' Ressler, 822 F. Supp. at 1555 (quoting In re Warner Communications Securities Litigation, 618 F. Supp. 735,745 (S.D.N.Y.1985)). Therefore, it is clear that Plaintiffs did have access to sufficient information to evaluate the case. Thus, this Court finds this factor also mitigates in favor of approval of the Agreement.
As there is no evidence of collusion, and an examination of all seven factors support the approval of the agreement as fair, adequate, and reasonable, it is hereby:
ORDERED and ADJUDGED 1. The proposed Amended Settlement Agreement (D.E. No. 296) is APPROVED.
This case is ADMINISTRATIVELY CLOSED and all pending motions are denied as MOOT. On June 30, 2007, if appropriate, the parties may make an appropriate motion for dismissal of this case with prejudice except as to the claims for prospective declaratory and injunctive relief of class members who have not been discharged from the DSis as provided for in the Amended Settlement Agreement. See (D.E. No. 296 at 8). 2. The Stover Objectors' oral motion to intervene is DENIED for the reasons stated on the record at the hearing on December, 10 2005 and for the reasons stated herein.
23

Case 1:98-cv-00673-JEM Document 341 Entered on FLSD Docket 08/12/2005 Page 24 of 24

3. The Stover Objectors' oral motion to decertify the class is DENIED for the

reasons stated on the record at the hearing on December 10, 2004 and for the

reasons stated herein.

-1.L DONE AND ORDERED in Chambers at Miami, Florida, this

day of August,

2005.

Copies Provided to: Magistrate Judge Bandstra All Counsel of Record

24

 </s> Case 1:98-cv-00673-JEM Document 360 Entered on FLSD Docket 07/02/2007 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division
Case Number: 98-673-CIV-MARTINEZ-BANDSTRA

SHELYNDRA BROWN, eta/., Plaintiffs,

vs.

JEB BUSH, et a/., Defendants.
_______________________________ /

ORDER GRANTING JOINT MOTION TO DISMISS CASE AFTER SUBSTANTIAL COMPLIANCE WITH AMENDED SETTLEMENT AGREEMENT

THIS CAUSE came before the Court upon the parties' Joint Motion to Dismiss Case

After Substantial Compliance with Amended Settlement Agreement (D.E. No. 359). The Court

has carefully considered the motion and is otherwise duly advised. It is hereby:

ORDERED and ADJUDGED that

1. The parties' Joint Motion to Dismiss Case After Substantial Compliance with

Amended Settlement Agreement (D.E. No. 359 (D.E. No.) is GRANTED.

2. This case is DISMISSED with prejudice, except for the claims for prospective

declaratory and injunctive relief of the class members who still reside at the DSis. These claims

are DISMISSED without prejudice.

3. This case is CLOSED.

DONE AND ORDERED in Chambers at Miami, Florid
~LAJ'( ~- ~OL

Copies provided to: Magistrate Judge Bandstra All Counsel ofRecord

JOSE E. MARTINEZ UNITED STATES DISTRI

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

)

SHELYNDRA BROWN,

)

by her mother and

)

next friend,

)

JESSE O’NEIL, et al.,

)

)

Plaintiffs, )

)

v.

) Civil Action No.: 98-673-CIV

)

(FERGUSON)

)

LAWTON CHILES,

)

in his official capacity

)

as Governor of the State

)

of Florida, et al.,

)

)

Defendants. )

)

UNITED STATES’ MEMORANDUM OF LAW AS AMICUS CURIAE AND INTERVENOR
IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

TABLE OF CONTENTS

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . i

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. THE ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS' ADA AND REHABILITATION ACT CLAIMS, AS PLAINTIFFS SEEK PROSPECTIVE EQUITABLE RELIEF . . . . . . . . . . . . . . . 3

II. PLAINTIFFS' ADA CLAIM IS NOT BARRED, BECAUSE THE ADA IS A VALID EXERCISE OF CONGRESS' POWER TO ABROGATE STATES' ELEVENTH AMENDMENT IMMUNITY. . . . . . . . . . . . 4

A. In the ADA, Congress Has Unequivocally Expressed Its Intent to Abrogate States' Eleventh Amendment Immunity . . . . . . . . . . . .5

B. The ADA Is a Valid Exercise of Congress' Power to Enforce the Fourteenth Amendment. . . . 6

1. The ADA Was Enacted to Enforce the Equal Protection Clause . . . . . . . . .. . 7

2. The ADA is Plainly Adapted to Enforcing the Equal Protection Clause. . . . . . . . .10

a. Congress Found that Discrimination Against People with Disabilities Was Severe and Extended to Every Aspect of Society . . . . . . . . . .. 10

b. The ADA Is a Proportionate Response by Congress to Remedy and Prevent the Pervasive Discrimination It Found. . .. 13

c. In Enacting the ADA, Congress Was Redressing Constitutionally Cognizable Injuries . . . . . . . . . . . . . . . 14

III. THE ELEVENTH AMENDMENT DOES NOT IMMUNIZE DEFENDANTS

AGAINST PLAINTIFFS' REHABILITATION ACT CLAIMS. . . .

21

A. The Rehabilitation Act, Like the ADA, Is a Valid Abrogation of States' Eleventh Amendment Immunity Under Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . .. . . 21

B. The State Waived Its Eleventh Amendment Immunity to Rehabilitation Act Suits by Accepting Federal Funds After the Enactment of Section 2000d-7 . . . . 23

IV. THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION REGULATION PROVIDE A CAUSE OF ACTION FOR UNNECESSARY INSTITUTIONALIZATION. . . . . . . . . . . . . . . . .. . 24

A. Plaintiffs Are Not Required to Allege that

They Experience Discrimination as Compared to

Non-disabled Persons. . . . . . . . . . . . . . .

26

B. Whether Appropriate Community Placement of the Plaintiff Class Would Require a "Fundamental Alteration" of a State Program Is a Fact-Bound Question . . . . . . . . . . . . . . . . . . . . . 28

Conclusion. . . . . . . . . . . . . . . . . . . . . . . .

34

TABLE OF AUTHORITIES CASES
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . 13, 17, 19
Anderson v. Department of Pub. Welfare, 1998 WL 154654, *9-10 (E.D. Pa. 1998) . . . . . . . . . . . . . . . . . 33
Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985)..22, 23
Autio v. State , 968 F. Supp. 1366 (D. Minn. 1997), aff'd, 140 F.3d 803 (8th Cir. 1998), vacated and reh'g granted (July 7, 1998) . . . . . . . . . . . . . . . 5, 21
Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) . 8
City of Boerne v. Flores, 117 S. Ct. 2157 (1997) . . . 7, 10, 20
Charles O. v. Houston, 1996 WL 447549, *5-6 (M.D. Pa. 1996) 32
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). . . . . . . . . 12, 13, 15, 16, 17, 18
City of Rome v. United States, 446 U.S. 156 (1980) . . . . . 20
Civic Association of the Deaf of New York City v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996) . . . . . . . . . . . 32
Clark v. California, 123 F.3d 1267 (9th Cir. 1997), cert. denied sub nom. Wilson v. Armstrong, 1998 WL 324198 (June 22, 1998) . . . . 5, 10, 21, 22, 23, 24
Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998) . 5, 10, 21
Cooper v. Nix, 496 F.2d 1285 (5th Cir. 1974) . . . . . . . . 8
Corpus v. Estelle, 605 F.2d 1285 (5th Cir. 1979), cert. denied, 445 U.S. 919 (1980) . . . . . . . . . . . . . . . . . . . 7
Crawford v. Indiana Department of Corrections, 115 F.3d 481 (7th Cir. 1997) . . . . . . . . . . . 5, 10, 21
Department of Education, v. Katherine D.,531 F. Supp. 517 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985) . . . . . . . . . . . . . . . . . . 23
Does 1-13 v. Chiles, 136 F.3d 709 (11th Cir. 1998) . . . . . 4
-i-

Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) . . . . . . 22 Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . 23 Eric L. v. Bird, 848 F. Supp. 303 (D.N.H. 1994) . . . . . . 33 Fitzpatrick v. Bitzner, 427 U.S. 445 (1976) . . . . . . . 7, 20 Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . . . . . 13, 19 Gordon v. E.L. Hamm & Associates, 100 F.3d 907
(11th Cir. 1996) . . . . . . . . . . . . . . . . . . . 14 Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied
sub nom., Pennsylvania Secretary of Public Welfare v. Idell S., 516 U.S. 813 (1995). . . . . . . . . . 24, 25, 27 Holbrook v. City of Alpharetta. Ga., 112 F.3d 1522 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . .. . . . 14 Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996), appeal dismissed . . . . . . . . . . . . . . . . . . . . . . . 23 Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028 (1997). .4 Kathleen S. v. Department of Public Welfare, No. 97-6610, slip op. (E.D.Pa. June 26, 1998) . . . . . . . . . . 31, 34 Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . 7, 20 Kimel v. State of Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998) . . . . . . . . . . 5, 9, 20 L.C. v. Olmstead, 138 F.3d 893 (11th Cir. 1998), petition for reh'g en banc denied (July 1, 1998) 24, passim Lane v. Pena, 518 U.S. 187 (1996) . . . . . . . . . . . 22, 24 Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990). . . . 22, 24 Maher v. Gagne, 448 U.S. 122 (1980) . . . . . . . . . . . . . 9 Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993) . . 23 Mayer v. University of Minn., 940 F. Supp. 1474 (D. Minn. 1996). . . . . . . . . . . . . . . . . . . 21, 23 Messier v. Southbury Training School, 916 F. Supp. 133 (D. Conn. 1996) . . . . . . . . . . . . . . . . . . . . 27
Mills v. Maine, 118 F.3d 37 (1st Cir. 1997) . . . . . . . . 8
-ii-

Mitten v. Muscogee County School District, 877 F.2d 932 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990) . . . 9
Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996) . 21, 23
Papasan v. Alain, 478 U.S. 265 (1986) . . . . . . . . . . . . 4
Pennhurst State Sch. and Hospital v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . 4
City of Rome v. United States, 446 U.S. 156 (1980) . . . . . . 20
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . 8
Santiago v. New York State Department of Correctional Services, 945 F.2d 25 (2d Cir. 1991), cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . . . . . . 23
School Board of Nassau County v. Arline, 480 U.S. 273 (1987). .18
Scott v. City of Anniston, Ala., 597 F.2d 897 (5th Cir. 1979), cert. denied, 446 U.S. 917 (1980) . . . . . . . . . . . . 7
Seaborn v. State of Florida, 143 F.3d 1405 (11th Cir. 1998) . . . . . . . . . . . . . . . . . 5, 9, 20
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . 4, 5, 6, 7, 20, 22
South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . 19
Stanley v. Darlington County Sch. District, 879 F. Supp. 1341 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996) . . . . . . . . . . . . . . 23
Staron v. McDonalds Corp., 51 F.3d 353 (2d. Cir. 1995) . . . 33
Timmer v. Michigan Department of Commerce, 104 F.3d 833 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 7
United States v. Horton, 601 F.2d 319 (7th Cir.) cert. denied, 444 U.S. 937 (1979) . . . . . . . . . . 17
United States v. Yonkers Board of Education, 893 F.2d 498 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . 23
Ex parte Virginia, 100 U.S. (10 Otto) 339 (1879) . . . . . . 6
Welch v. Texas Department of Highways & Public Transportation, (483) U.S. 468 (1987) . . . . . . . . . . . . . . . . . 22
Williams v. Wasserman, 937 F. Supp. 524 (D. Md. 1996)..27, 32, 23
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Ex parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . 4 STATUTES
Fla. Stat. Ann. §§ 393.066, 393.13, 419.001 . . . . . . . . . 30 Individuals with Disabilities Education Act ("IDEA"),
20 U.S.C. § 1400 et seq . . . . . . . . . . . . . . . . 9 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 .1, passim Social Security Act, 42 U.S.C. §§ 1396, 1396(a), 1396d(d) . . 2 Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c . . . 20 42 U.S.C. § 2000d-7 . . . . . . . . . . . . . . . . . . 22, 24 42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . 8, passim 42 U.S.C. § 12102(2)(A) . . . . . . . . . . . . . . . . . . . 17 Title II of the ADA, 42 U.S.C. §§ 12131 et seq. . . . 1, passim 42 U.S.C. § 12202 . . . . . . . . . . . . . . . . . . . . . . 6
REGULATIONS 28 C.F.R. § 35.130(b)(7) . . . . . . . . . . . . . . 14, 28, 34 28 C.F.R. § 35.130(d) . . . . . . . . . . . 2, 14, 24, 27, 28, 34
LEGISLATIVE HISTORY 136 Cong. Rec. 10,870 (1990) (Rep. Fish) . . . . . . . . . 19 136 Cong. Rec. 10,870 (1990) (Rep. Dellums) . . . . . . . . 19 H.R. Rep. No. 485 pt. 2, 101st Cong., 2d Sess. 28-31 (1990)
. . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19 S. Rep. No. 116, 101st Cong., 1st Sess. 7-8 (1989) . 11, 12, 19
-iv-

MISCELLANEOUS

Timothy M. Cook, The Americans with Disabilities Act. The Move to Integration, 64 Temp. L. Rev. 393, 393-394 nn.1-4, 412 n.133 (1991) . . . . . . . . . . . . . . . . 11

Deval L. Patrick, Assitant Attorney General, Civil Rights Division, United States Department of Justice, Letter to Governor Lawton Chiles (June 14, 1996) . . . . . . . . . . . . . . . . .

Exhibit A

Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law (1978) . . . . . . . . . . . . . . . 17

U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 23-26 (1983) . . . 11, 12, 18, 19

Lowell f. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temp. L. Rev. 387, 387-389 (1991) . . . . . . . . . . . . . . . . . . . 11

-v-

UNITED STATES’ MEMORANDUM OF LAW AS AMICUS CURIAE AND INTERVENOR
IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS
INTRODUCTION The United States submits this memorandum in opposition to defendants’ motions to dismiss,1 and moves simultaneously to intervene as of right in this action to address the constitutionality of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and for leave to address as amicus curiae the proper construction of Title II of the ADA and regulations promulgated thereunder.2 On March 24, 1998, plaintiffs filed this action on behalf of themselves and a class of 1433 other persons who are confined to four Florida State institutions (DSIs) for individuals with developmental disabilities, seeking remedies including improved conditions of confinement for class members who require institutional care, and placement in community settings in the case of each class member for whom such placement would be
1 On May 14, 1998, the Attorney General of the State of Florida filed a memorandum of law in support of a motion to dismiss on behalf of all defendants. (This memorandum is cited herein as “Def. Br. __.”) In addition, one of the defendants, Tamara Allen, Director of the Division of Vocational Rehabilitation, Florida Department of Labor and Employment Security, filed her own motion to dismiss and motion for a more definite statement on May 18, 1998.
2 Together with this memorandum of law, the United States submits motion papers seeking intervention as of right, leave to participate as amicus curiae, leave to file a memorandum of law exceeding twenty pages, and two proposed orders.

appropriate.3 The action is brought under Title II of the ADA, 42 U.S.C. §§ 12131-34, and the “integration regulation” promulgated thereunder, 28 C.F.R. § 35.130(d); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; the Social Security Act, 42 U.S.C. §§ 1396, 1396(a), 1396d(d), and certain regulations promulgated thereunder; the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983.
Defendants have filed a motion to dismiss the complaint, arguing that plaintiffs fail to allege injury as required to establish standing; fail to state a claim under the ADA because they do not allege that they are discriminated against in the provision of state-sponsored services vis-a-vis non-disabled persons; seek a “fundamental alteration” in the State’s programs which would be contrary to the ADA; rely on allegedly unconstitutional provisions of federal statutes (Title II of the ADA and Section 504 of the Rehabilitation Act); fail to state cognizable constitutional claims; and do not have a private right of action under the Social Security Act.
The United States moves to intervene as of right to argue that Title II of the ADA and Section 504 of the Rehabilitation Act are constitutional and a valid abrogation of states’ Eleventh Amendment immunity. Given the importance of the ADA questions raised, the role of the Department of Justice in promulgating regulations under the ADA, and the Department’s ongoing
3 The four institutions are: the Landmark Learning Center, the Sunland Center at Marianna, Tacachale Sunland, and Gulf Coast Center.
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investigation of one of the facilities named in the complaint, the United States also moves for leave to address, as amicus curiae, the proper interpretation of Title II of the ADA and regulations promulgated thereunder.4 Contrary to the position defendants take in their briefs, in order to state a claim under the ADA, plaintiffs are not required to allege that non-disabled persons are provided with the same community services the plaintiffs seek, i.e., that the plaintiffs experience discrimination vis-a-vis non-disabled persons. Finally, whether the relief sought by plaintiffs in this class action involves, as defendants maintain it does, a “fundamental alteration” of a State program, such that it would not be required by the ADA, is in this case a fact-bound question, and is inappropriate for resolution at this stage of the litigation.
ARGUMENT I. THE ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS' ADA AND
REHABILITATION ACT CLAIMS, AS PLAINTIFFS SEEK PROSPECTIVE EQUITABLE RELIEF. Defendants seek dismissal of plaintiffs' ADA and Rehabilitation Act claims, arguing that these claims are barred by the Eleventh Amendment to the U.S. Constitution. Although the Eleventh Amendment generally bars private citizens from suing
4 Although the United States has made findings of violations of residents’ constitutional and statutory rights in its investigation of the Landmark Learning Center, the United States expresses no view here concerning issues raised in the Brown case other than those specifically addressed herein.
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states in federal court,5 states' Eleventh Amendment immunity is not absolute. As the Supreme Court held 90 years ago in Ex parte Young, 209 U.S. 123 (1908), states have no Eleventh Amendment immunity from suits against state officials seeking prospective equitable relief to prevent continuing violations of federal law.6 In Counts I, II, and III of their complaint, plaintiffs allege that defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act and seek prospective equitable -- i.e., declaratory and injunctive -- relief to prevent the State from continuing to violate these federal laws. Thus, plaintiffs' claims fall squarely within the Ex parte Young exception to Eleventh Amendment immunity and are not barred. II. PLAINTIFFS' ADA CLAIM IS NOT BARRED, BECAUSE THE ADA
IS A VALID EXERCISE OF CONGRESS' POWER TO ABROGATE STATES' ELEVENTH AMENDMENT IMMUNITY. In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996), the Supreme Court held that Congress can lawfully abrogate states' Eleventh Amendment immunity by statute if the statute passes two tests: (1) Congress must have "unequivocally expressed its intent to abrogate immunity" in the language of the
5 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-55, 58-59, 63-65 (1996); Papasan v. Alain, 478 U.S. 265, 276 (1986); Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
6 See also Seminole Tribe, 517 U.S. at 71-72 nn.14 & 16 (1996) (reaffirming the Ex parte Young exception to Eleventh Amendment immunity); Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028, 2040 (1997)(same); Does 1-13 v. Chiles, 136 F.3d 709, 718-20 (11th Cir. 1998)(holding that state is not immune from private citizens' lawsuit seeking prospective equitable relief to prevent continuing violation of federal law).
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statute, and (2) in enacting the statute, Congress must have "acted pursuant to a valid exercise of power." Defendants argue that the ADA fails to pass at least the second of these tests. Def. Br. at 20-30. But every court of appeals that has addressed this issue to date, including the Eleventh Circuit in Kimel v. State of Florida Board of Regents, 139 F.3d 1426, 1433 (11th Cir. 1998), and Seaborn v. State of Florida, 143 F.3d 1405 (11th Cir. 1998)(applying Kimel as binding law of the Eleventh Circuit), has rejected the same arguments that defendants raise here and has concluded that the ADA passes both tests. See Coolbaugh v. Louisiana, 136 F.3d 430, 430 (5th Cir. 1998); Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir. 1997); Clark v. California, 123 F.3d 1267, 1269-71 (9th Cir. 1997), cert. denied, 1998 WL 324198 (June 22, 1998). See also Autio v. State, 140 F.3d 802, 803, 806 (8th Cir. 1998), vacated and reh'g granted (July 7, 1998). However, because a petition for rehearing en banc of the Eleventh Circuit's Kimel ruling is still pending, the United States will address defendants arguments at some length. As is shown below, the ADA is a valid exercise of Congress' power under the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity from suit in federal court.
A. In the ADA, Congress Has Unequivocally Expressed Its Intent to Abrogate States' Eleventh Amendment Immunity.
Congress cannot abrogate states' Eleventh Amendment immunity for claims under a statute unless it has "unequivocally expressed" its intent to do so in the statute at issue. Seminole Tribe, 517 U.S. at 55-57. As the State apparently concedes,
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Congress' abrogation of immunity in Section 502 of the ADA passes this test. Def. Br. at 20, 23. The ADA provides: "[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 this chapter." 42 U.S.C. § 12202. Thus, defendants are not entitled to Eleventh Amendment immunity on plaintiffs' ADA claim if Congress' enactment of the ADA was a "valid exercise of power." Seminole Tribe, 517 U.S. at 55, 58-59.
B. The ADA Is a Valid Exercise of Congress' Power to Enforce the Fourteenth Amendment.
Defendants contend that they are entitled to Eleventh Amendment immunity because Congress exceeded its power under the Fourteenth Amendment in enacting the ADA. Def. Br. at 20-30. That contention is meritless.
Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the Equal Protection Clause. As the Supreme Court explained over a hundred years ago:
Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Ex parte Virginia, 100 U.S. (10 Otto) 339, 345-346 (1879). A statute is thus “appropriate legislation” to enforce the Equal Protection Clause if “it is 'plainly adapted to that end' and [if] it is not prohibited by but is consistent with 'the letter
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and spirit of the constitution.'” Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).7
In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court upheld the abrogation of states' Eleventh Amendment immunity in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as “appropriate” legislation under Section 5. It explained:
When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. Id. at 456. In Seminole Tribe, the Court reaffirmed the holding of Fitzpatrick. 517 U.S. at 59, 65-66, 71-72 n.15. Thus, even after Seminole Tribe, “§ 5 of the Fourteenth Amendment remains a provision that vests Congress with the power to abrogate Eleventh Amendment immunity.” Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838 (6th Cir. 1997). Accord City of Boerne v. Flores, 117 S.Ct. 2157 (1997). 1. The ADA Was Enacted to Enforce the Equal Protection
Clause. In enacting the ADA, Congress declared that its intent was “to invoke 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
7 See also Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir. 1979), cert. denied, 445 U.S. 919 (1980); Scott v. City of Anniston, Ala., 597 F.2d 897, 899-900 (5th Cir. 1979), cert. denied, 446 U.S. 917 (1980).
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people with disabilities.” 42 U.S.C. § 12101(b)(4). Thus, the ADA was enacted to enforce the Equal Protection Clause.
Even though the ADA, by its own terms, was enacted pursuant to Section 5 of the Fourteenth Amendment, defendants nonetheless argue that because classifications on the basis of disability are not subject to strict scrutiny, the ADA may not be regarded as legislation to enforce the Fourteenth Amendment. Def. Br. at 2425. But neither the prohibitions of the Equal Protection Clause nor Congress' Section 5 authority is limited to suspect classifications. “[A]rbitrary and irrational discrimination violates the Equal Protection Clause under even [the] most deferential standard of review.” Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988). See also Romer v. Evans, 517 U.S. 620, 630 (1996); Mills v. Maine, 118 F.3d 37, 46 (1st Cir. 1997) (collecting cases); Cooper v. Nix, 496 F.2d 1285, 1287 (5th Cir. 1974). In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985), the Supreme Court made clear that government discrimination on the basis of disability is prohibited by the Equal Protection Clause when it is arbitrary. Although a majority declined to deem classifications on the basis of mental retardation as “quasi-suspect,” it nonetheless held that the Fourteenth Amendment did not leave persons with such disabilities “unprotected from invidious discrimination.” Id. at 446.
Moreover, the Supreme Court has upheld Congress' authority to abrogate Eleventh Amendment immunity pursuant to Section 5 in
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cases involving non-suspect classifications. In Maher v. Gagne,
448 U.S. 122 (1980), the plaintiff brought suit under 42 U.S.C.
§ 1983 against a state official, alleging that certain state AFDC
regulations violated the Fourteenth Amendment's Equal Protection
and Due Process Clauses by creating arbitrary, but non-suspect,
classifications. Id. at 124-125 & n.5. After the parties
entered into a consent decree, the plaintiff sought attorneys'
fees pursuant to 42 U.S.C. § 1988. The state official argued
that such an award was barred by the Eleventh Amendment. The
Supreme Court held to the contrary, explaining that “[u]nder § 5
Congress may pass any legislation that is appropriate to enforce
the guarantees of the Fourteenth Amendment. A statute awarding
attorneys' fees to a person who prevails on a Fourteenth
Amendment claim falls within the category of 'appropriate'
legislation.” Id. at 132. The Court specifically declined to
limit Congress' Section 5 authority to certain types of
Fourteenth Amendment claims. Id. at 133 n.16; id. at 134-135
(Powell, J., concurring in part).
Finally, the Eleventh Circuit rejected the same argument that defendants make here. Kimel, 139 F.3d at 1433.8 Indeed,
8 Kimel is consistent with the Eleventh Circuit's ruling in Mitten v. Muscogee County School District, 877 F.2d 932, 937 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990), which held that another statute that protects the rights of persons with disabilities, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., was validly enacted pursuant to Section 5 of the Fourteenth Amendment. See also Seaborn, 143 F.3d at 1405 (applying Kimel as law of the Eleventh Circuit to
(continued...)
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all of the courts of appeals that have addressed the issue have upheld the ADA's abrogation of states' Eleventh Amendment immunity. Coolbaugh, 136 F.3d at 433; Crawford, 115 F.3d at 487; Clark, 123 F.3d at 1270-71.
2. The ADA Is Plainly Adapted to Enforcing the Equal Protection Clause.
Defendants next argue that the ADA is not validly enacted pursuant to the Fourteenth Amendment because it provides protection that is outside the scope of the Fourteenth Amendment. But the Supreme Court's recent decision in City of Boerne, 117 S.Ct. at 2157, addressed the question of the permissible scope of a statute that is “plainly adapted” to enforce the Fourteenth Amendment. In City of Boerne, the Court concluded that even statutes that prohibit more than the Equal Protection Clause itself prohibits can be “appropriate remedial measures” when there is “a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented.” Id. at 2169.
a. Congress Found that Discrimination Against People with Disabilities Was Severe and Extended to Every Aspect of Society.
In enacting the ADA, Congress made express findings about the status of people with disabilities in our society and determined that they were subject to continuing “serious and pervasive” discrimination that “tended to isolate and segregate
8(...continued) hold that the Eleventh Amendment does not bar ADA claim filed against the State by employees of the State of Florida Department of Corrections).
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individuals with disabilities.” 42 U.S.C. § 12101(a)(2).9 Evidence before Congress demonstrated that persons with disabilities were sometimes excluded from public services for no reason other than distaste for or fear of their disabilities. See S. Rep. No. 116, 101st Cong., 1st Sess. 7-8 (1989) (citing instances of discrimination based on negative reactions to sight of disability) (Senate Report); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 28-31 (1990) (same) (House Report). Indeed, the United States Commission on Civil Rights, after a thorough survey of the available data, documented that prejudice against persons with disabilities manifested itself in a variety of ways, including “reaction[s] of aversion,” reliance on “false” stereotypes, and stigma associated with disabilities that lead to people with disabilities being “thought of as not quite human.” U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 23-26 (1983); see also Senate Report, supra, at 21. The negative attitudes, in turn, produced fear and reluctance on the part of people with disabilities to participate in society. See Senate Report, supra, at 16; House Report, supra, at 35, 41-43; Cook, supra, at 411. Congress thus concluded that persons with disabilities were “faced with restrictions and limitations . . . resulting from stereotypic
9 See also Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393-394 nn.1-4, 412 n.133 (1991); Lowell P. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temp. L. Rev. 387, 387-389 (1991) (discussing other laws enacted to redress discrimination against persons with disabilities).
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assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. § 12101(a)(7).
The decades of ignorance, fear and misunderstanding created a tangled web of discrimination, resulting in and being reinforced by isolation and segregation. The evidence before Congress demonstrated that these attitudes were linked more generally to the segregation of people with disabilities. See Senate Report, supra, at 11; U.S. Commission on Civil Rights, supra, at 43-45. This segregation was in part the result of government policies in “critical areas [such] as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. 12101(a)(3) (emphasis added). Evidence before Congress showed that government policies and practices, in tandem with similar private discrimination, produced a situation in which people with disabilities were largely poor, isolated, and segregated. As Justice Marshall explained, “lengthy and continuing isolation of [persons with disabilities] perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them.” Cleburne, 473 U.S. at 464; see also U.S. Commission on Civil Rights, supra, at 43-45. This evidence provided an ample basis for Congress to conclude that government discrimination was a root cause of “people with disabilities, as a group, occupy[ing] an inferior status in our society, and [being] severely disadvantaged
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socially, vocationally, economically, and educationally.” 42 U.S.C. § 12101(a)(6).
b. The ADA Is a Proportionate Response by Congress to Remedy and Prevent the Pervasive Discrimination It Found.
Section 5 of the Fourteenth Amendment gives Congress broad power to address what it found to be the “continuing existence of unfair and unnecessary discrimination and prejudice [that] denies people with disabilities the opportunity . . . to pursue those opportunities for which our free society is justifiably famous.” See 42 U.S.C. § 12101(a)(9). “It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.” Fullilove v. Klutznick, 448 U.S. 448, 483 (1980) (opinion of Burger, C.J.). “Prejudice, once let loose, is not easily cabined.” Cleburne, 473 U.S. at 464 (Marshall, J.).
After extensive investigation, Congress found that the exclusion of persons with disabilities from public facilities, programs, and benefits was a result of past and on-going discrimination. See 42 U.S.C. § 12101. In the ADA, Congress sought to remedy the effects of past discrimination and prevent like discrimination in the future by mandating that “qualified handicapped individual[s] must be provided with meaningful access to the benefit that the [entity] offers.” Alexander v. Choate,
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469 U.S. 287, 301 (1985) (emphasis added).10 Thus, Title II of the ADA requires 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. And, regulations implementing Title II of the ADA require that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). While this requirement imposes some burden on the States, that burden is not unlimited. Regulations implementing Title II of the ADA do not require public entities to make reasonable modifications to policies, practices, or procedures if "the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7).
c. In Enacting the ADA, Congress Was Redressing Constitutionally Cognizable Injuries.
In enacting the ADA, Congress was acting within the constitutional framework that has been laid out by the Supreme Court. As discussed above, the Equal Protection Clause prohibits invidious discrimination, that is “a classification whose
10 Alexander dealt with Section 504 of the Rehabilitation Act. The Eleventh Circuit, however, has held that the ADA imposes substantive requirements similar to Section 504. See, e.g., Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 n.2 (11th Cir. 1997); Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 913 n.3 (11th Cir. 1996).
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relationship to [a legitimate] goal is so attenuated as to render the distinction arbitrary or irrational.” Cleburne, 473 U.S. at 446. In Cleburne, the Supreme Court unanimously declared unconstitutional as invidious discrimination a decision by a city to deny a special use permit for the operation of a group home for people with mental retardation. A majority of the Court recognized that “through ignorance and prejudice [persons with disabilities] 'have been subjected to a history of unfair and often grotesque mistreatment.'” Id. at 454 (Stevens, J., concurring and quoting court of appeals decision in Cleburne, 726 F.2d 191, 197 (5th Cir. 1984)); see id. at 461 (Marshall, J., concurring in the judgment in part). The Court acknowledged that “irrational prejudice,” id. at 450, “irrational fears,” id. at 455 (Stevens, J.), and “impermissible assumptions or outmoded and perhaps invidious stereotypes,” id. at 465 (Marshall, J.), existed against people with disabilities in society at large and sometimes inappropriately infected government decision making.
While a majority of the Court declined to deem classifications based on disability as suspect or “quasisuspect,” id. at 442, the Court elected not to do so, in part, because it would unduly limit legislative solutions to problems faced by persons with disabilities. The Court reasoned that “[h]ow this large and diversified group is to be treated under the law is a difficult and often technical matter, very much a task for legislators guided by qualified professionals.” Id. at 442-443. It specifically noted with approval legislation such as
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Section 504, which aimed at protecting persons with disabilities, and openly worried that requiring governmental entities to justify their efforts under heightened scrutiny might “lead [governmental entities] to refrain from acting at all.” Id. at 444.
Nevertheless, the Court did affirm that “there have been and there will continue to be instances of discrimination against [persons with mental retardation] that are . . . properly subject to judicial correction under constitutional norms,” id. at 446, and found the actions at issue in that case unconstitutional. In doing so, the Court articulated several criteria for making such determinations in cases involving disabilities. First, the Court held that the fact that persons with mental retardation were “indeed different from others,” id. at 448, did not preclude a claim that they were denied equal protection; instead, it had to be shown that the difference was relevant to the “legitimate interests” furthered by the rules. Id. at 448. Second, in measuring the government's interest, the Court did not examine all conceivable rationales for the differential treatment of persons with mental retardation; instead, it looked to the record and found that “the record [did] not reveal any rational basis” for the decision to deny a special use permit. Ibid.; see also id. at 450 (stating that “this record does not clarify how . . . the characteristics of [people with mental retardation] rationally justify denying” them what would be permitted for others). Third, the Court found that “mere negative attitudes,
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or fear, unsubstantiated by factors which are properly cognizable . . . are not permissible bases” for imposing special restrictions on persons with disabilities. Id. at 448.
The Supreme Court has also recognized that the principle of equality is not an empty formalism divorced from the realities of day-to-day life, and thus the Equal Protection Clause is not limited to prohibiting unequal treatment of similarly situated persons. The Equal Protection Clause also guarantees “that people of different circumstances will not be treated as if they were the same.” United States v. Horton, 601 F.2d 319, 324 (7th Cir.), cert. denied, 444 U.S. 937 (1979) (quoting Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law 520 (1978)). By definition, persons with disabilities have “a physical or mental impairment that substantially limits one or more . . . major life activities.” 42 U.S.C. § 12102(2)(A). Thus, as to that life activity, “the handicapped typically are not similarly situated to the nonhandicapped.” Alexander, 469 U.S. at 298. The Constitution is not blind to this reality. It is a denial of equality when access to facilities, benefits and services is denied because the State refuses to acknowledge the “real and undeniable differences between [persons with disabilities] and others.” Cleburne, 473 U.S. at 444.
The State contends that the ADA is not proper remedial legislation because it imposes affirmative duties in addition to simple prohibitions. Def. Br. at 26-28. But, viewed in light of the underlying Equal Protection principles, the ADA is
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appropriate preventive and remedial legislation. First, it is preventive because it establishes a statutory scheme that attempts to detect government activities likely tainted by discrimination. By requiring the State to show on the record that distinctions it makes based on disability, or refusals to provide meaningful access to facilities, programs and services, are not the result of prejudice or stereotypes, but rather based on legitimate governmental objectives, the ADA attempts to ensure that inaccurate stereotypes or irrational fear are not the true cause of the decision. Cf. School Bd. of Nassau County v. Arline, 480 U.S. 273, 284-285 (1987). This is similar to the standards articulated by the Court in Cleburne.
Second, the ADA is remedial in that it attempts to ensure that the interests of people with disabilities are given due consideration. Not surprisingly, given their profound segregation from the rest of society, see 42 U.S.C. § 12101(a)(2), the needs of persons with disabilities were not taken into account when buildings were designed, standards were set, and rules were promulgated. See U.S. Commission on Civil Rights, supra, at 21-22, 38. Even when considered, their interests may not have been properly weighed, since “irrational fears or ignorance, traceable to the prolonged social and cultural isolation of [persons with disabilities] continue to stymie recognition of [their] dignity and individuality.” Cleburne, 473 U.S. at 467 (Marshall, J.).
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Policies and criteria unnecessarily relegating persons to life within the walls of an institution are real barriers. As Congress and the Supreme Court recognized, many of the problems faced today by persons with disabilities are a result of “thoughtlessness or indifference -- or benign neglect” to the interaction between purportedly “neutral” rules and persons with disabilities.11 As a result, Congress determined that for an entity to treat persons with disabilities as it did those without disabilities was not sufficient to eliminate the effects of years of segregation and to give persons with disabilities equally meaningful access to every aspect of society. See 42 U.S.C. § 12101; see also U.S. Commission on Civil Rights, supra, at 99. When persons with disabilities have been segregated, isolated, and denied effective participation in society, Congress may conclude that affirmative measures are necessary to bring them into the mainstream. Cf. Fullilove, 448 U.S. at 477-478.
The ADA thus falls neatly in line with other statutes that have been upheld as valid Section 5 legislation. For when, as here, there is evidence of a history of extensive discrimination, Congress may prohibit (or require modifications of) rules, policies and practices that tend to have a discriminatory effect on a class or individual, regardless of the intent behind those rules, policies and practices. In South Carolina v. Katzenbach,
11 See Senate Report, supra, at 6 (quoting without attribution Alexander, 469 U.S. at 295); House Report, supra, at 29 (same); 136 Cong. Rec. 10,870 (1990) (Rep. Fish); id. at 11,467 (Rep. Dellums).
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383 U.S. 301, 325-337 (1966), and again in City of Rome v. United States, 446 U.S. 156, 177 (1980), both cited with approval in City of Boerne, 117 S.Ct. at 2169, the Supreme Court upheld the constitutionality of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which prohibits covered jurisdictions from implementing any electoral change that is discriminatory in effect. 117 S.Ct. at 2169.12
In exercising its broad power under Section 5 to remedy the ongoing effects of past discrimination and prevent present and future discrimination, Congress is afforded “wide latitude.” City of Boerne, 117 S. Ct. at 2164. “It is for Congress in the first instance to 'determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference.” Id. at 2172 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1996)). This holding is consistent with all the other courts that have considered the issue since Seminole Tribe, which are in agreement that Congress' abrogation of Eleventh Amendment immunity for suits under the ADA is “appropriate legislation” to enforce the Fourteenth Amendment. See Kimel, 139 F.3d at 1433, Seaborn, 143
12 Defendants argue that the ADA is inconsistent with the Tenth Amendment because it usurps power reserved to the states. Def. Br. at 20 & n.7. They are simply incorrect. The Fourteenth Amendment “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe, 517 U.S. at 59. Thus a long “line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States.” Fitzpatrick, 427 U.S. at 455.
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F.3d at 1405 (applying Kimel); Crawford, 115 F.3d at 487; Coolbaugh, 136 F.3d at 430; Clark, 123 F.3d at 1270-71; Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996); Mayer v. University of Minn., 940 F. Supp. 1474 (D. Minn. 1996). See also Autio, 968 F. Supp. 1366 (D. Minn. 1997), aff'd, 140 F.3d 803, 806 (8th Cir. 1998), vacated and reh'g granted (July 7, 1998). Although some of these decisions pre-date City of Boerne, for the reasons discussed above they remain good law. III. THE ELEVENTH AMENDMENT DOES NOT IMMUNIZE DEFENDANTS
AGAINST PLAINTIFFS' REHABILITATION ACT CLAIMS. Defendants contend that plaintiffs' Rehabilitation Act claims must be dismissed because the Rehabilitation Act is invalid Spending Clause legislation that does not properly abrogate states' Eleventh Amendment immunity. Def. Br. at 28-30. Defendants' argument fails for two reasons. First, the Rehabilitation Act, like the ADA, is legislation to enforce the Equal Protection guarantees of the Fourteenth Amendment -- not merely a statute enacted pursuant to the Spending Clause. Clark, 123 F.3d at 1270. Second, even if the Rehabilitation Act were enacted pursuant to the Spending Clause, it is nonetheless valid because it provides ample notice to states that abrogation of Eleventh Amendment rights is a condition of receipt of federal funds. Id. at 1271. A. The Rehabilitation Act, Like the ADA, Is a Valid
Abrogation of States' Eleventh Amendment Immunity Under Section 5 of the Fourteenth Amendment. Congress has lawfully abrogated states' Eleventh Amendment immunity in the Rehabilitation Act if: (1) it has "unequivocally
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expressed its intent to abrogate immunity" in the language of the statute, and (2) it "acted pursuant to a valid exercise of power" in enacting the statute. Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).
Congress amended the Rehabilitation Act in 1973 to make clear that the statute was intended to abrogate states' Eleventh Amendment immunity. Section 2000d-7 of Title 42 provides that a "State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973." Thus, Congress' intent to abrogate states' Eleventh Amendment immunity under the Rehabilitation Act is unambiguous. Lussier v. Dugger, 904 F.2d 661, 668-70 (11th Cir. 1990). See also Lane v. Pena, 518 U.S. 187, 196-99 (1996); Clark, 123 F.3d at 1271; Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996).
It is equally clear that the Rehabilitation Act, like the ADA, was enacted to enforce the Equal Protection Clause. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244-245 n.4 (1985);13 Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 472 n. 2 (1987) ("The Rehabilitation Act was passed pursuant to § 5 of the Fourteenth Amendment. Congress therefore had the power to subject
13 Although the Supreme Court held in Atascadero in 1985 that the Eleventh Amendment abrogation was ineffective because of the absence of an express abrogation (an absence that Congress remedied in 1986 by enacting 42 U.S.C. § 2000d-7), it did not question the Ninth Circuit's holding that the Rehabilitation Act was legislation to enforce the Equal Protection Clause.
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unconsenting States to suit in federal court" (citations omitted).14 And, for the reasons stated in Section II supra, the Rehabilitation Act is valid legislation to enforce the Equal Protection Clause, just as the ADA is valid legislation to enforce the Equal Protection Clause. Clark, 123 F.3d at 1270-71; Mayer, 940 F. Supp. at 1479; Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996). Thus, the Eleventh Amendment affords defendants no protection from plaintiffs' Rehabilitation Act claims.15
B. The State Waived Its Eleventh Amendment Immunity to Rehabilitation Act Suits by Accepting Federal Funds After the Enactment of Section 2000d-7.
It is a well-settled matter of law, and defendants concede,
that a state may waive its Eleventh Amendment immunity by
participating in a program that receives federal funds. Edelman
v. Jordan, 415 U.S. 651, 672 (1974); Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 238 n.1 (1985) (“[a] state may effectuate
a waiver of its constitutional immunity by . . . waiving its
immunity to suit in the context of a particular federal
14 See also Department of Educ. v. Katherine D., 531 F. Supp. 517, 530 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985).
15 See Hunter v. Chiles, 944 F. Supp. 914, 917 (S.D. Fla. 1996), appeal dismissed, June 23, 1997; Mayer, 940 F. Supp. at 1478-1480; Niece, 941 F. Supp. at 1501-1504. See also United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503 (2d Cir. 1990); Santiago v. New York State Dep't of Correctional Services, 945 F.2d 25, 31 (2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992); Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341, 1363-1364 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996); Martin v. Voinovich, 840 F. Supp. 1175, 1187 (S.D. Ohio 1993).
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program”). Defendants contend, however, that they are immune from plaintiffs' Rehabilitation Act claim because the Rehabilitation Act does not provide them with notice sufficient to support a waiver of immunity under the Spending Clause. Def. Br. at 28-30. Defendants' argument is meritless.
By enacting 42 U.S.C. § 2000d-7, Congress provided unambiguous notice to states that waiver of Eleventh Amendment immunity was a condition of receipt of funds under the Rehabilitation Act. Clark, 123 F.3d at 1271. See Lane, 518 U.S. at 198; Lussier, 904 F.2d at 669. Thus, defendants' argument that they did not waive their right to immunity because they lacked notice is simply unavailing. Clark, 123 F.3d at 1270-71. IV. THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION
REGULATION PROVIDE A CAUSE OF ACTION FOR UNNECESSARY INSTITUTIONALIZATION. The ADA “integration regulation,” promulgated by the Department of Justice under Title II of the ADA, requires covered public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).16 The regulation, along with Title II of the ADA, 42 U.S.C. § 12131 et seq., provides the basis for a challenge to unnecessary institutional segregation where professional
16 The ADA integration regulation has “the force of law.” L.C. v. Olmstead, 138 F.3d 893, 898 (11th Cir. 1998), petition for reh'g en banc denied (July 1, 1998); Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir.), cert. denied sub nom., Pennsylvania Secretary of Pub. Welfare v. Idell S., 516 U.S. 813 (1995).
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assessments determine that institutionalized individuals could be served in integrated community settings appropriate to their needs. See L.C. v. Olmstead, 138 F.3d 893, 902-03 (11th Cir. 1998) petition for reh'g en banc denied (July 1, 1998); see also id. at 898 (“the denial of community placements to [institutionalized] individuals with disabilities. . . is precisely the kind of segregation that Congress sought to eliminate” through enactment of the ADA); see generally Helen L. v. DiDario, 46 F.3d 325, 332-33 (3d Cir.) (unnecessary institutional segregation of persons with disabilities is prohibited by Title II of the ADA and the integration regulation promulgated thereunder), cert. denied sub. nom., Pennsylvania Secretary of Pub. Welfare v. Idell S., 516 U.S. 813 (1995).
In L.C., the Eleventh Circuit upheld a finding that the State of Georgia had discriminated against two persons with psychiatric disabilities “by confining them in a segregated institution rather than in an integrated community-based program.” 138 F.3d at 895. The Eleventh Circuit conclusively repudiated the argument that in order to state a claim under the ADA, plaintiffs were required to make “a comparison of the treatment of individuals with disabilities against that of healthy non-disabled persons.” Id. at 896. The State of Florida advances the same failed argument here, and it must be repudiated again, as it was in L.C.
Defendants also argue that the relief requested by the plaintiffs involves a “fundamental alteration” as a matter of
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law, and that the complaint should therefore be dismissed. However, as the complaint has been drawn, the question is factbound and is inappropriate for resolution at this stage of the litigation. See L.C., 138 F.3d at 905 (Georgia's defense of "fundamental alteration" to community placement is one that is properly decided by the trial court).
A. Plaintiffs Are Not Required to Allege that They Experience Discrimination as Compared to Non-disabled Persons.
Defendants maintain that the failure to provide developmentally disabled individuals with appropriate services in the community cannot, as a matter of law, constitute discrimination prohibited by the ADA, because plaintiffs have not alleged that non-disabled persons receive similar services in community settings. Def. Br. at 10-11; see also id. at 12-13 (“In this action, Plaintiffs seek access to community-based services (as opposed to institutional services) for treatment of their disabilities. As a matter of law, Plaintiffs cannot allege that non-disabled persons would be eligible for the same services. Therefore, under the circumstances of this case, Plaintiffs can state no ADA cause of action”).
To the contrary, the Eleventh Circuit has held that institutionalized persons with disabilities can state a claim for discrimination under the ADA and seek community-based services without alleging that non-disabled persons receive community services from which the disabled plaintiffs have been excluded:
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Under [28 C.F.R.] § 35.130(d), the failure to provide the most integrated services appropriate to the needs of disabled persons constitutes unlawful disabilitybased discrimination -- even though such services may not be needed by non-disabled individuals -- because such segregation perpetuates their status as secondclass citizens unfit for community life. As the Third Circuit explained in holding that the unnecessary segregation of disabled persons violates Title II of the ADA, '[t]he ADA is intended to ensure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner that shunts them aside, hides, and ignores them.’
L.C., 138 F.3d at 899 (emphasis added; quoting Helen L., 46 F.3d
at 335). One other circuit court as well as district courts
examining this question have reached the same conclusion. Helen
L., 46 F.3d at 333-35; Williams v. Wasserman, 937 F. Supp. 524,
529-30 (D. Md. 1996); Messier v. Southbury Training School, 916
F. Supp. 133, 140-42 (D. Conn. 1996).
Here, as in L.C.:
The fact that [plaintiffs] seek community-based treatment services that only disabled persons need does not foreclose their claim that they were unnecessarily segregated. The ADA does not only mandate that individuals with disabilities be treated the same as persons without such disabilities. Underlying the ADA’s prohibitions is the notion that individuals with disabilities must be accorded reasonable accommodations not offered to other persons in order to ensure that individuals with disabilities enjoy equality of opportunity, full participation, independent living, and economic self-sufficiency. . . . This principle . . . runs throughout the ADA.
138 F.3d at 899 (citations omitted).
And, as in L.C., “[r]educed to its essence, the State’s
argument is that Title II of the ADA affords no protection to
individuals with disabilities who receive public services
designed only for individuals with disabilities.” Id. at 896.
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The same response received by the defendants in L.C. applies
here:
The State has not pointed to any legal authority that supports such a reading of Title II of the ADA and its integration regulation, § 35.130(d), and we can find none. To the contrary, we find overwhelming authority in the plain language of Title II of the ADA, its legislative history, the Attorney General’s Title II regulations, and the Justice Department’s consistent interpretation of those regulations, to support [plaintiffs'] position.
Id. In other words, persons with disabilities need not compare
the treatment they receive with that received by non-disabled
persons, in order to state a claim under the ADA. Defendants'
attempt to dismiss the complaint on this ground should be
denied.17
B. Whether Appropriate Community Placement of the Plaintiff Class Would Require a “Fundamental Alteration” of a State Program is a Fact-bound Question.
The regulations promulgated under the ADA require that:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7). Thus, the burden is on the defendants
to prove that the relief sought by the plaintiffs would
constitute a fundamental alteration of its programs.
17 Presumably, the only reason the defendants raised the argument conclusively rejected in L.C. was to preserve it in the event the L.C. decision was reheard en banc or the State of Georgia petitioned for certiorari to the United States Supreme Court. On July 1, 1998, the Eleventh Circuit denied rehearing in L.C.
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The Eleventh Circuit determined in L.C. that the issue of whether community placement from an institution would entail a “fundamental alteration” in a State program is one that is properly decided by the trial court. 138 F.3d at 905. The Eleventh Circuit remanded the case to the district court for further factual development with a list of factors that the court should consider. Id. These factors included: (1) whether the additional expenditures (if any) required for community-based care would be unreasonable in light of the relevant State budget, (2) whether it would be unreasonable to require the State to use additional available Medicaid waiver slots, as well as any authority it might have to transfer funds from institutionalized care to community-based care, and (3) whether any difference in the cost of providing institutional or community-based care would itself lessen the State’s burden. Id. This list was “not exclusive” and the court stated specifically that the “district court may consider any other factors it believes are relevant to the fundamental alteration inquiry.” Id.
L.C. left open the “difficult questions of fundamental alteration” that might be present in a class action seeking “deinstitutionalization” of a state hospital, as opposed to an action seeking community placement for a few individual plaintiffs. 138 F.3d at 905 & n.10. Although the Brown plaintiffs do not request closure of any state institution, they seek community placement for each individual class member for whom such placement would be appropriate. Florida maintains that
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the relief requested by the plaintiffs would require, as a matter of law, a “fundamental alteration,” and that the relief therefore cannot be required under the ADA. Def. Br. at 16-19. However, as the plaintiffs’ complaint has been drawn, the question of “fundamental alteration” is fact-bound, and cannot be resolved at this stage of the litigation.
For example, defendants state that placement of hundreds of class members in the community would “impact” state programs. Def. Br. at 18 n.6; see also 15 n.4. But an “impact,” particularly one that is merely speculative in nature, is not a per se fundamental alteration, especially where, as here, the State already has a community-based service system for persons with developmental disabilities and its legislature has mandated the continued development of that system. See, e.g., Fla. Stat. Ann. §§ 393.066, 393.13, 419.001; see also Exhibit A (June 14, 1996 letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, United States Department of Justice, to Governor Lawton Chiles, reporting findings of investigation of Landmark Learning Center, at 4).
Defendants encapsulate plaintiffs’ requested relief as “requiring [the State] to dismantle its provision of institutionalized care to individuals with disabilities.” Def. Br. at 18. Defendants mischaracterize the relief that plaintiffs seek in their complaint. The injunction that plaintiffs seek contemplates the continued existence of all or some of the DSIs. For example, the plaintiff class is defined as persons who reside
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in the DSIs or in the future may reside there (Complaint ¶¶ 1, 30), and the relief sought by the plaintiffs includes not merely community placement (Complaint at 41-44), but also extensive reform of conditions within the institutions. Complaint at 4144.
Plaintiffs seek community placement of each class member for whom such placement would be appropriate (see Complaint at 41-44 & ¶ 126), and maintain that the State can offer them, without a fundamental increase in cost, “the opportunity to participate in, and the benefits of, public services and programs that are as effective and meaningful as those delivered to other citizens and that are delivered in less separate, more integrated settings.” Complaint ¶¶ 121, 126.
Even assuming the relief requested would result in administrative inconvenience or additional expenditures by the State, that alone would not necessarily constitute a “fundamental alteration.” L.C., 138 F.3d at 902 (“the plain language of the ADA’s Title II regulations, as well as the ADA’s legislative history, make clear that Congress wanted to permit a cost defense in only the most limited of circumstances”; and, according to the legislative history of Title II, “[t]he fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services”). See also Kathleen S. v. Department of Pub. Welfare, No. 97-6610, slip op. at 25 (E.D.Pa. June 26, 1998)(“The Court finds that complying
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with the ADA's integration mandate does not require a fundamental
alteration of the services that the Commonwealth requires DPW to
furnish in connection with community placement” of several
hundred institutionalized mentally ill class members)(attached as
Exhibit B); Charles Q. v. Houston, 1996 WL 447549, *5-6 (M.D. Pa. 1996); Wasserman, 937 F. Supp. at 528, 530.18 Cf. Civic Assn. of
the Deaf of New York City v. Giuliani, 915 F. Supp. 622, 636-37
(S.D.N.Y. 1996) (public entity must demonstrate more than “high”
expense in order for court to find that accommodation is unduly onerous under ADA Title II regulations).19
As the plaintiffs’ complaint has been drawn, the question
whether the relief sought by the plaintiffs would constitute a
“fundamental alteration” is fact-bound and, as such, is
inappropriate for resolution at this stage of the litigation.
See, e.g., L.C.,138 F.3d at 905 (remanding to trial court for
determination of whether community placement would constitute
18 Although the court in Wasserman opined in dicta that the Third Circuit's decision in Helen L. “does not support the imposition of court-ordered relief that would require 'transferring millions of dollars from institutions to the community',” the court held that the administrative and financial implications of the relief requested (including community placement) by the class in Wasserman were fact issues that required further development, and therefore the court denied the defendants' motion for summary judgment on plaintiffs' ADA claims. 937 F. Supp. at 528, 531 (quoting brief submitted by the Wasserman defendants).
19 In any case, if defendants are suggesting (Def. Br. at 15 & n.4; 18) that persons who do not require institutional care should remain institutionalized in order to preserve the viability of institutions for those who do require that level of care, there is no legal precedent for that view.
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“fundamental alteration”); Wasserman, 937 F. Supp. at 528 (whether defendants were correct that the transfer of many plaintiffs--conceivably “hundreds”--from institutional settings to community placements would require a “fundamental alteration” of the State’s mental health care delivery system was a disputed issue of material fact precluding summary judgment); Anderson v. Department of Pub. Welfare, 1998 WL 154654, *9-10 (E.D. Pa. 1998) (whether class action seeking changes to managed care program covered by ADA Title II would require a fundamental alteration was a fact issue precluding summary judgment, where the relief requested included architectural modifications, provision of information in different formats, and alternative methods of administration). Cf. Eric L. v. Bird, 848 F. Supp. 303, 313-14 (D.N.H. 1994) (denying motion to dismiss complaint presenting claims under Title II of the ADA and Section 504 of the Rehabilitation Act, where plaintiff class of institutionalized children sought appropriate community placement; observing that plaintiffs' ADA and Section 504 claims presented fact issues); Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d. Cir. 1995) (refusing to dismiss ADA Title III complaint for failure to state a claim, because determination of whether requested accommodation would be reasonable “involves a fact-specific, case-by-case inquiry”).
In sum, contrary to defendants' position that the relief sought in plaintiffs' complaint is a per se fundamental alteration, the State must bear the burden of proving that
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placing class members into community programs pursuant to individualized determinations by professionals would in fact require a fundamental alteration in the State's programs. L.C., 138 F.3d at 904-05; Kathleen S., No. 97-6610, slip op. at 25-26 (concluding after a bench trial that the State had not carried its burden under 28 C.F.R. § 35.130(b)(7), 28 C.F.R. § 35.130(d) and Title II of the ADA, of producing evidence in support of its claim that providing appropriate community facilities to institutionalized, mentally ill class members would result in a “fundamental alteration,” and ordering community placement of class members for whom professionals determine such placement is appropriate).
CONCLUSION For the reasons stated herein, the Court should deny defendants’ motions to dismiss as to plaintiffs' ADA claims, and as to the defendants' argument that Section 504 of the Rehabilitation Act is unconstitutional. Title II of the ADA and Section 504 of the Rehabilitation Act are constitutional and a valid abrogation of the State’s Eleventh Amendment immunity. In order to state a claim for discrimination under the ADA, plaintiffs are not required to allege that non-disabled persons are provided the same services the plaintiffs seek. Finally, the question of what constitutes a “fundamental alteration” of a state program for purposes of Title II of the ADA is, in this case, a fact-bound issue, precluding dismissal for failure to state a claim as a matter of law.
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Dated:

Washington, D.C. July 17, 1998

Respectfully Submitted,

THOMAS E. SCOTT

BILL LANN LEE

United States Attorney

Acting Assistant Attorney General

Southern District of Florida Civil Rights Division

VERONICA HARRELL-JAMES Assistant U.S. Attorney 99 N.E. 4th Street Miami, FL 33132 (305) 961-9327

JOHN L. WODATCH Chief Disability Rights Section
STEVEN H. ROSENBAUM Chief Special Litigation Section

RENEE WOHLENHAUS Acting Deputy Chief Disability Rights Section

ROBINSUE FROHBOESE Deputy Chief Special Litigation Section

PHILIP L. BREEN Special Legal Counsel Disability Rights Section

__________________________ LOUISA A. SMITH JEANINE WORDEN Attorneys Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6216

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CERTIFICATE OF SERVICE
I hereby certify that on July 17, 1998, I sent by Federal Express copies of the United States' Memorandum of Law as Amicus Curiae and Intervenor in Opposition to Defendants' Motions to Dismiss; the United States' Motion to Intervene as of Right and for Leave to Participate as Amicus Curiae; and the United States' Motion for Leave to File Memorandum of Law Exceeding Twenty Pages, to the following counsel of record:
The Honorable Robert A. Butterworth Attorney General
Stephanie A. Daniel, Esq. Assistant Attorney General
Chesterfield Smith, Jr., Esq. Assistant Attorney General
Office of the Attorney General The Capitol, Suite PL01 Tallahassee, Florida 32399
J.C. Miller, Esq. Office of the General Counsel Department of Labor/Employment Security Hartman Building, Suite 307 2012 Capitol Circle, S.E. Tallahassee, Florida 32399
Andrew J. Meyers, Esq. Special Counsel 14600 South Military Trail DelRay Beach, Florida 33445
Peter Nimkoff, Esq. Litigation Director Advocacy Center for Persons
with Disabilities, Inc. 2671 Executive Center Circle West
Suite 100 Tallahassee, Florida 32301
Ellen M. Saideman, Esq. Senior Attorney
Juliette E. Lippman, Esq. Senior Attorney
Advocacy Center for Persons with Disabilities, Inc.
2901 Stirling Road, Suite 206 Fort Lauderdale, Florida 33312
_____________________ LOUISA A. SMITH
Attorney

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

)

SHELYNDRA BROWN,

)

by her mother and

)

next friend,

)

JESSE O’NEIL, et al.,

)

)

Plaintiffs, )

)

v.

) Civil Action No.: 98-673-CIV

)

(FERGUSON)

)

LAWTON CHILES,

)

in his official capacity

)

as Governor of the State

)

of Florida, et al.,

)

)

Defendants. )

)

UNITED STATES’ MEMORANDUM OF LAW AS AMICUS CURIAE AND INTERVENOR
IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

TABLE OF CONTENTS

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . i

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. THE ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS' ADA AND REHABILITATION ACT CLAIMS, AS PLAINTIFFS SEEK PROSPECTIVE EQUITABLE RELIEF . . . . . . . . . . . . . . . 3

II. PLAINTIFFS' ADA CLAIM IS NOT BARRED, BECAUSE THE ADA IS A VALID EXERCISE OF CONGRESS' POWER TO ABROGATE STATES' ELEVENTH AMENDMENT IMMUNITY. . . . . . . . . . . . 4

A. In the ADA, Congress Has Unequivocally Expressed Its Intent to Abrogate States' Eleventh Amendment Immunity . . . . . . . . . . . .5

B. The ADA Is a Valid Exercise of Congress' Power to Enforce the Fourteenth Amendment. . . . 6

1. The ADA Was Enacted to Enforce the Equal Protection Clause . . . . . . . . .. . 7

2. The ADA is Plainly Adapted to Enforcing the Equal Protection Clause. . . . . . . . .10

a. Congress Found that Discrimination Against People with Disabilities Was Severe and Extended to Every Aspect of Society . . . . . . . . . .. 10

b. The ADA Is a Proportionate Response by Congress to Remedy and Prevent the Pervasive Discrimination It Found. . .. 13

c. In Enacting the ADA, Congress Was Redressing Constitutionally Cognizable Injuries . . . . . . . . . . . . . . . 14

III. THE ELEVENTH AMENDMENT DOES NOT IMMUNIZE DEFENDANTS

AGAINST PLAINTIFFS' REHABILITATION ACT CLAIMS. . . .

21

A. The Rehabilitation Act, Like the ADA, Is a Valid Abrogation of States' Eleventh Amendment Immunity Under Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . .. . . 21

B. The State Waived Its Eleventh Amendment Immunity to Rehabilitation Act Suits by Accepting Federal Funds After the Enactment of Section 2000d-7 . . . . 23

IV. THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION REGULATION PROVIDE A CAUSE OF ACTION FOR UNNECESSARY INSTITUTIONALIZATION. . . . . . . . . . . . . . . . .. . 24

A. Plaintiffs Are Not Required to Allege that

They Experience Discrimination as Compared to

Non-disabled Persons. . . . . . . . . . . . . . .

26

B. Whether Appropriate Community Placement of the Plaintiff Class Would Require a "Fundamental Alteration" of a State Program Is a Fact-Bound Question . . . . . . . . . . . . . . . . . . . . . 28

Conclusion. . . . . . . . . . . . . . . . . . . . . . . .

34

TABLE OF AUTHORITIES CASES
Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . 13, 17, 19
Anderson v. Department of Pub. Welfare, 1998 WL 154654, *9-10 (E.D. Pa. 1998) . . . . . . . . . . . . . . . . . 33
Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985)..22, 23
Autio v. State , 968 F. Supp. 1366 (D. Minn. 1997), aff'd, 140 F.3d 803 (8th Cir. 1998), vacated and reh'g granted (July 7, 1998) . . . . . . . . . . . . . . . 5, 21
Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) . 8
City of Boerne v. Flores, 117 S. Ct. 2157 (1997) . . . 7, 10, 20
Charles O. v. Houston, 1996 WL 447549, *5-6 (M.D. Pa. 1996) 32
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). . . . . . . . . 12, 13, 15, 16, 17, 18
City of Rome v. United States, 446 U.S. 156 (1980) . . . . . 20
Civic Association of the Deaf of New York City v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996) . . . . . . . . . . . 32
Clark v. California, 123 F.3d 1267 (9th Cir. 1997), cert. denied sub nom. Wilson v. Armstrong, 1998 WL 324198 (June 22, 1998) . . . . 5, 10, 21, 22, 23, 24
Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998) . 5, 10, 21
Cooper v. Nix, 496 F.2d 1285 (5th Cir. 1974) . . . . . . . . 8
Corpus v. Estelle, 605 F.2d 1285 (5th Cir. 1979), cert. denied, 445 U.S. 919 (1980) . . . . . . . . . . . . . . . . . . . 7
Crawford v. Indiana Department of Corrections, 115 F.3d 481 (7th Cir. 1997) . . . . . . . . . . . 5, 10, 21
Department of Education, v. Katherine D.,531 F. Supp. 517 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985) . . . . . . . . . . . . . . . . . . 23
Does 1-13 v. Chiles, 136 F.3d 709 (11th Cir. 1998) . . . . . 4
-i-

Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) . . . . . . 22 Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . 23 Eric L. v. Bird, 848 F. Supp. 303 (D.N.H. 1994) . . . . . . 33 Fitzpatrick v. Bitzner, 427 U.S. 445 (1976) . . . . . . . 7, 20 Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . . . . . 13, 19 Gordon v. E.L. Hamm & Associates, 100 F.3d 907
(11th Cir. 1996) . . . . . . . . . . . . . . . . . . . 14 Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied
sub nom., Pennsylvania Secretary of Public Welfare v. Idell S., 516 U.S. 813 (1995). . . . . . . . . . 24, 25, 27 Holbrook v. City of Alpharetta. Ga., 112 F.3d 1522 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . .. . . . 14 Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996), appeal dismissed . . . . . . . . . . . . . . . . . . . . . . . 23 Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028 (1997). .4 Kathleen S. v. Department of Public Welfare, No. 97-6610, slip op. (E.D.Pa. June 26, 1998) . . . . . . . . . . 31, 34 Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . 7, 20 Kimel v. State of Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998) . . . . . . . . . . 5, 9, 20 L.C. v. Olmstead, 138 F.3d 893 (11th Cir. 1998), petition for reh'g en banc denied (July 1, 1998) 24, passim Lane v. Pena, 518 U.S. 187 (1996) . . . . . . . . . . . 22, 24 Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990). . . . 22, 24 Maher v. Gagne, 448 U.S. 122 (1980) . . . . . . . . . . . . . 9 Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993) . . 23 Mayer v. University of Minn., 940 F. Supp. 1474 (D. Minn. 1996). . . . . . . . . . . . . . . . . . . 21, 23 Messier v. Southbury Training School, 916 F. Supp. 133 (D. Conn. 1996) . . . . . . . . . . . . . . . . . . . . 27
Mills v. Maine, 118 F.3d 37 (1st Cir. 1997) . . . . . . . . 8
-ii-

Mitten v. Muscogee County School District, 877 F.2d 932 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990) . . . 9
Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996) . 21, 23
Papasan v. Alain, 478 U.S. 265 (1986) . . . . . . . . . . . . 4
Pennhurst State Sch. and Hospital v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . 4
City of Rome v. United States, 446 U.S. 156 (1980) . . . . . . 20
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . 8
Santiago v. New York State Department of Correctional Services, 945 F.2d 25 (2d Cir. 1991), cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . . . . . . 23
School Board of Nassau County v. Arline, 480 U.S. 273 (1987). .18
Scott v. City of Anniston, Ala., 597 F.2d 897 (5th Cir. 1979), cert. denied, 446 U.S. 917 (1980) . . . . . . . . . . . . 7
Seaborn v. State of Florida, 143 F.3d 1405 (11th Cir. 1998) . . . . . . . . . . . . . . . . . 5, 9, 20
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . 4, 5, 6, 7, 20, 22
South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . . 19
Stanley v. Darlington County Sch. District, 879 F. Supp. 1341 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996) . . . . . . . . . . . . . . 23
Staron v. McDonalds Corp., 51 F.3d 353 (2d. Cir. 1995) . . . 33
Timmer v. Michigan Department of Commerce, 104 F.3d 833 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 7
United States v. Horton, 601 F.2d 319 (7th Cir.) cert. denied, 444 U.S. 937 (1979) . . . . . . . . . . 17
United States v. Yonkers Board of Education, 893 F.2d 498 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . 23
Ex parte Virginia, 100 U.S. (10 Otto) 339 (1879) . . . . . . 6
Welch v. Texas Department of Highways & Public Transportation, (483) U.S. 468 (1987) . . . . . . . . . . . . . . . . . 22
Williams v. Wasserman, 937 F. Supp. 524 (D. Md. 1996)..27, 32, 23
-iii-

Ex parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . 4 STATUTES
Fla. Stat. Ann. §§ 393.066, 393.13, 419.001 . . . . . . . . . 30 Individuals with Disabilities Education Act ("IDEA"),
20 U.S.C. § 1400 et seq . . . . . . . . . . . . . . . . 9 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 .1, passim Social Security Act, 42 U.S.C. §§ 1396, 1396(a), 1396d(d) . . 2 Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c . . . 20 42 U.S.C. § 2000d-7 . . . . . . . . . . . . . . . . . . 22, 24 42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . 8, passim 42 U.S.C. § 12102(2)(A) . . . . . . . . . . . . . . . . . . . 17 Title II of the ADA, 42 U.S.C. §§ 12131 et seq. . . . 1, passim 42 U.S.C. § 12202 . . . . . . . . . . . . . . . . . . . . . . 6
REGULATIONS 28 C.F.R. § 35.130(b)(7) . . . . . . . . . . . . . . 14, 28, 34 28 C.F.R. § 35.130(d) . . . . . . . . . . . 2, 14, 24, 27, 28, 34
LEGISLATIVE HISTORY 136 Cong. Rec. 10,870 (1990) (Rep. Fish) . . . . . . . . . 19 136 Cong. Rec. 10,870 (1990) (Rep. Dellums) . . . . . . . . 19 H.R. Rep. No. 485 pt. 2, 101st Cong., 2d Sess. 28-31 (1990)
. . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19 S. Rep. No. 116, 101st Cong., 1st Sess. 7-8 (1989) . 11, 12, 19
-iv-

MISCELLANEOUS

Timothy M. Cook, The Americans with Disabilities Act. The Move to Integration, 64 Temp. L. Rev. 393, 393-394 nn.1-4, 412 n.133 (1991) . . . . . . . . . . . . . . . . 11

Deval L. Patrick, Assitant Attorney General, Civil Rights Division, United States Department of Justice, Letter to Governor Lawton Chiles (June 14, 1996) . . . . . . . . . . . . . . . . .

Exhibit A

Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law (1978) . . . . . . . . . . . . . . . 17

U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 23-26 (1983) . . . 11, 12, 18, 19

Lowell f. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temp. L. Rev. 387, 387-389 (1991) . . . . . . . . . . . . . . . . . . . 11

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UNITED STATES’ MEMORANDUM OF LAW AS AMICUS CURIAE AND INTERVENOR
IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS
INTRODUCTION The United States submits this memorandum in opposition to defendants’ motions to dismiss,1 and moves simultaneously to intervene as of right in this action to address the constitutionality of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and for leave to address as amicus curiae the proper construction of Title II of the ADA and regulations promulgated thereunder.2 On March 24, 1998, plaintiffs filed this action on behalf of themselves and a class of 1433 other persons who are confined to four Florida State institutions (DSIs) for individuals with developmental disabilities, seeking remedies including improved conditions of confinement for class members who require institutional care, and placement in community settings in the case of each class member for whom such placement would be
1 On May 14, 1998, the Attorney General of the State of Florida filed a memorandum of law in support of a motion to dismiss on behalf of all defendants. (This memorandum is cited herein as “Def. Br. __.”) In addition, one of the defendants, Tamara Allen, Director of the Division of Vocational Rehabilitation, Florida Department of Labor and Employment Security, filed her own motion to dismiss and motion for a more definite statement on May 18, 1998.
2 Together with this memorandum of law, the United States submits motion papers seeking intervention as of right, leave to participate as amicus curiae, leave to file a memorandum of law exceeding twenty pages, and two proposed orders.

appropriate.3 The action is brought under Title II of the ADA, 42 U.S.C. §§ 12131-34, and the “integration regulation” promulgated thereunder, 28 C.F.R. § 35.130(d); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; the Social Security Act, 42 U.S.C. §§ 1396, 1396(a), 1396d(d), and certain regulations promulgated thereunder; the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983.
Defendants have filed a motion to dismiss the complaint, arguing that plaintiffs fail to allege injury as required to establish standing; fail to state a claim under the ADA because they do not allege that they are discriminated against in the provision of state-sponsored services vis-a-vis non-disabled persons; seek a “fundamental alteration” in the State’s programs which would be contrary to the ADA; rely on allegedly unconstitutional provisions of federal statutes (Title II of the ADA and Section 504 of the Rehabilitation Act); fail to state cognizable constitutional claims; and do not have a private right of action under the Social Security Act.
The United States moves to intervene as of right to argue that Title II of the ADA and Section 504 of the Rehabilitation Act are constitutional and a valid abrogation of states’ Eleventh Amendment immunity. Given the importance of the ADA questions raised, the role of the Department of Justice in promulgating regulations under the ADA, and the Department’s ongoing
3 The four institutions are: the Landmark Learning Center, the Sunland Center at Marianna, Tacachale Sunland, and Gulf Coast Center.
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investigation of one of the facilities named in the complaint, the United States also moves for leave to address, as amicus curiae, the proper interpretation of Title II of the ADA and regulations promulgated thereunder.4 Contrary to the position defendants take in their briefs, in order to state a claim under the ADA, plaintiffs are not required to allege that non-disabled persons are provided with the same community services the plaintiffs seek, i.e., that the plaintiffs experience discrimination vis-a-vis non-disabled persons. Finally, whether the relief sought by plaintiffs in this class action involves, as defendants maintain it does, a “fundamental alteration” of a State program, such that it would not be required by the ADA, is in this case a fact-bound question, and is inappropriate for resolution at this stage of the litigation.
ARGUMENT I. THE ELEVENTH AMENDMENT DOES NOT BAR PLAINTIFFS' ADA AND
REHABILITATION ACT CLAIMS, AS PLAINTIFFS SEEK PROSPECTIVE EQUITABLE RELIEF. Defendants seek dismissal of plaintiffs' ADA and Rehabilitation Act claims, arguing that these claims are barred by the Eleventh Amendment to the U.S. Constitution. Although the Eleventh Amendment generally bars private citizens from suing
4 Although the United States has made findings of violations of residents’ constitutional and statutory rights in its investigation of the Landmark Learning Center, the United States expresses no view here concerning issues raised in the Brown case other than those specifically addressed herein.
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states in federal court,5 states' Eleventh Amendment immunity is not absolute. As the Supreme Court held 90 years ago in Ex parte Young, 209 U.S. 123 (1908), states have no Eleventh Amendment immunity from suits against state officials seeking prospective equitable relief to prevent continuing violations of federal law.6 In Counts I, II, and III of their complaint, plaintiffs allege that defendants have violated Title II of the ADA and Section 504 of the Rehabilitation Act and seek prospective equitable -- i.e., declaratory and injunctive -- relief to prevent the State from continuing to violate these federal laws. Thus, plaintiffs' claims fall squarely within the Ex parte Young exception to Eleventh Amendment immunity and are not barred. II. PLAINTIFFS' ADA CLAIM IS NOT BARRED, BECAUSE THE ADA
IS A VALID EXERCISE OF CONGRESS' POWER TO ABROGATE STATES' ELEVENTH AMENDMENT IMMUNITY. In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996), the Supreme Court held that Congress can lawfully abrogate states' Eleventh Amendment immunity by statute if the statute passes two tests: (1) Congress must have "unequivocally expressed its intent to abrogate immunity" in the language of the
5 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-55, 58-59, 63-65 (1996); Papasan v. Alain, 478 U.S. 265, 276 (1986); Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
6 See also Seminole Tribe, 517 U.S. at 71-72 nn.14 & 16 (1996) (reaffirming the Ex parte Young exception to Eleventh Amendment immunity); Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028, 2040 (1997)(same); Does 1-13 v. Chiles, 136 F.3d 709, 718-20 (11th Cir. 1998)(holding that state is not immune from private citizens' lawsuit seeking prospective equitable relief to prevent continuing violation of federal law).
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statute, and (2) in enacting the statute, Congress must have "acted pursuant to a valid exercise of power." Defendants argue that the ADA fails to pass at least the second of these tests. Def. Br. at 20-30. But every court of appeals that has addressed this issue to date, including the Eleventh Circuit in Kimel v. State of Florida Board of Regents, 139 F.3d 1426, 1433 (11th Cir. 1998), and Seaborn v. State of Florida, 143 F.3d 1405 (11th Cir. 1998)(applying Kimel as binding law of the Eleventh Circuit), has rejected the same arguments that defendants raise here and has concluded that the ADA passes both tests. See Coolbaugh v. Louisiana, 136 F.3d 430, 430 (5th Cir. 1998); Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir. 1997); Clark v. California, 123 F.3d 1267, 1269-71 (9th Cir. 1997), cert. denied, 1998 WL 324198 (June 22, 1998). See also Autio v. State, 140 F.3d 802, 803, 806 (8th Cir. 1998), vacated and reh'g granted (July 7, 1998). However, because a petition for rehearing en banc of the Eleventh Circuit's Kimel ruling is still pending, the United States will address defendants arguments at some length. As is shown below, the ADA is a valid exercise of Congress' power under the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity from suit in federal court.
A. In the ADA, Congress Has Unequivocally Expressed Its Intent to Abrogate States' Eleventh Amendment Immunity.
Congress cannot abrogate states' Eleventh Amendment immunity for claims under a statute unless it has "unequivocally expressed" its intent to do so in the statute at issue. Seminole Tribe, 517 U.S. at 55-57. As the State apparently concedes,
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Congress' abrogation of immunity in Section 502 of the ADA passes this test. Def. Br. at 20, 23. The ADA provides: "[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 this chapter." 42 U.S.C. § 12202. Thus, defendants are not entitled to Eleventh Amendment immunity on plaintiffs' ADA claim if Congress' enactment of the ADA was a "valid exercise of power." Seminole Tribe, 517 U.S. at 55, 58-59.
B. The ADA Is a Valid Exercise of Congress' Power to Enforce the Fourteenth Amendment.
Defendants contend that they are entitled to Eleventh Amendment immunity because Congress exceeded its power under the Fourteenth Amendment in enacting the ADA. Def. Br. at 20-30. That contention is meritless.
Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the Equal Protection Clause. As the Supreme Court explained over a hundred years ago:
Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Ex parte Virginia, 100 U.S. (10 Otto) 339, 345-346 (1879). A statute is thus “appropriate legislation” to enforce the Equal Protection Clause if “it is 'plainly adapted to that end' and [if] it is not prohibited by but is consistent with 'the letter
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and spirit of the constitution.'” Katzenbach v. Morgan, 384 U.S. 641, 651 (1966).7
In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court upheld the abrogation of states' Eleventh Amendment immunity in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as “appropriate” legislation under Section 5. It explained:
When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. Id. at 456. In Seminole Tribe, the Court reaffirmed the holding of Fitzpatrick. 517 U.S. at 59, 65-66, 71-72 n.15. Thus, even after Seminole Tribe, “§ 5 of the Fourteenth Amendment remains a provision that vests Congress with the power to abrogate Eleventh Amendment immunity.” Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838 (6th Cir. 1997). Accord City of Boerne v. Flores, 117 S.Ct. 2157 (1997). 1. The ADA Was Enacted to Enforce the Equal Protection
Clause. In enacting the ADA, Congress declared that its intent was “to invoke 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
7 See also Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir. 1979), cert. denied, 445 U.S. 919 (1980); Scott v. City of Anniston, Ala., 597 F.2d 897, 899-900 (5th Cir. 1979), cert. denied, 446 U.S. 917 (1980).
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people with disabilities.” 42 U.S.C. § 12101(b)(4). Thus, the ADA was enacted to enforce the Equal Protection Clause.
Even though the ADA, by its own terms, was enacted pursuant to Section 5 of the Fourteenth Amendment, defendants nonetheless argue that because classifications on the basis of disability are not subject to strict scrutiny, the ADA may not be regarded as legislation to enforce the Fourteenth Amendment. Def. Br. at 2425. But neither the prohibitions of the Equal Protection Clause nor Congress' Section 5 authority is limited to suspect classifications. “[A]rbitrary and irrational discrimination violates the Equal Protection Clause under even [the] most deferential standard of review.” Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988). See also Romer v. Evans, 517 U.S. 620, 630 (1996); Mills v. Maine, 118 F.3d 37, 46 (1st Cir. 1997) (collecting cases); Cooper v. Nix, 496 F.2d 1285, 1287 (5th Cir. 1974). In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985), the Supreme Court made clear that government discrimination on the basis of disability is prohibited by the Equal Protection Clause when it is arbitrary. Although a majority declined to deem classifications on the basis of mental retardation as “quasi-suspect,” it nonetheless held that the Fourteenth Amendment did not leave persons with such disabilities “unprotected from invidious discrimination.” Id. at 446.
Moreover, the Supreme Court has upheld Congress' authority to abrogate Eleventh Amendment immunity pursuant to Section 5 in
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cases involving non-suspect classifications. In Maher v. Gagne,
448 U.S. 122 (1980), the plaintiff brought suit under 42 U.S.C.
§ 1983 against a state official, alleging that certain state AFDC
regulations violated the Fourteenth Amendment's Equal Protection
and Due Process Clauses by creating arbitrary, but non-suspect,
classifications. Id. at 124-125 & n.5. After the parties
entered into a consent decree, the plaintiff sought attorneys'
fees pursuant to 42 U.S.C. § 1988. The state official argued
that such an award was barred by the Eleventh Amendment. The
Supreme Court held to the contrary, explaining that “[u]nder § 5
Congress may pass any legislation that is appropriate to enforce
the guarantees of the Fourteenth Amendment. A statute awarding
attorneys' fees to a person who prevails on a Fourteenth
Amendment claim falls within the category of 'appropriate'
legislation.” Id. at 132. The Court specifically declined to
limit Congress' Section 5 authority to certain types of
Fourteenth Amendment claims. Id. at 133 n.16; id. at 134-135
(Powell, J., concurring in part).
Finally, the Eleventh Circuit rejected the same argument that defendants make here. Kimel, 139 F.3d at 1433.8 Indeed,
8 Kimel is consistent with the Eleventh Circuit's ruling in Mitten v. Muscogee County School District, 877 F.2d 932, 937 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990), which held that another statute that protects the rights of persons with disabilities, the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., was validly enacted pursuant to Section 5 of the Fourteenth Amendment. See also Seaborn, 143 F.3d at 1405 (applying Kimel as law of the Eleventh Circuit to
(continued...)
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all of the courts of appeals that have addressed the issue have upheld the ADA's abrogation of states' Eleventh Amendment immunity. Coolbaugh, 136 F.3d at 433; Crawford, 115 F.3d at 487; Clark, 123 F.3d at 1270-71.
2. The ADA Is Plainly Adapted to Enforcing the Equal Protection Clause.
Defendants next argue that the ADA is not validly enacted pursuant to the Fourteenth Amendment because it provides protection that is outside the scope of the Fourteenth Amendment. But the Supreme Court's recent decision in City of Boerne, 117 S.Ct. at 2157, addressed the question of the permissible scope of a statute that is “plainly adapted” to enforce the Fourteenth Amendment. In City of Boerne, the Court concluded that even statutes that prohibit more than the Equal Protection Clause itself prohibits can be “appropriate remedial measures” when there is “a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented.” Id. at 2169.
a. Congress Found that Discrimination Against People with Disabilities Was Severe and Extended to Every Aspect of Society.
In enacting the ADA, Congress made express findings about the status of people with disabilities in our society and determined that they were subject to continuing “serious and pervasive” discrimination that “tended to isolate and segregate
8(...continued) hold that the Eleventh Amendment does not bar ADA claim filed against the State by employees of the State of Florida Department of Corrections).
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individuals with disabilities.” 42 U.S.C. § 12101(a)(2).9 Evidence before Congress demonstrated that persons with disabilities were sometimes excluded from public services for no reason other than distaste for or fear of their disabilities. See S. Rep. No. 116, 101st Cong., 1st Sess. 7-8 (1989) (citing instances of discrimination based on negative reactions to sight of disability) (Senate Report); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 28-31 (1990) (same) (House Report). Indeed, the United States Commission on Civil Rights, after a thorough survey of the available data, documented that prejudice against persons with disabilities manifested itself in a variety of ways, including “reaction[s] of aversion,” reliance on “false” stereotypes, and stigma associated with disabilities that lead to people with disabilities being “thought of as not quite human.” U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 23-26 (1983); see also Senate Report, supra, at 21. The negative attitudes, in turn, produced fear and reluctance on the part of people with disabilities to participate in society. See Senate Report, supra, at 16; House Report, supra, at 35, 41-43; Cook, supra, at 411. Congress thus concluded that persons with disabilities were “faced with restrictions and limitations . . . resulting from stereotypic
9 See also Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393-394 nn.1-4, 412 n.133 (1991); Lowell P. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temp. L. Rev. 387, 387-389 (1991) (discussing other laws enacted to redress discrimination against persons with disabilities).
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assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. § 12101(a)(7).
The decades of ignorance, fear and misunderstanding created a tangled web of discrimination, resulting in and being reinforced by isolation and segregation. The evidence before Congress demonstrated that these attitudes were linked more generally to the segregation of people with disabilities. See Senate Report, supra, at 11; U.S. Commission on Civil Rights, supra, at 43-45. This segregation was in part the result of government policies in “critical areas [such] as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. 12101(a)(3) (emphasis added). Evidence before Congress showed that government policies and practices, in tandem with similar private discrimination, produced a situation in which people with disabilities were largely poor, isolated, and segregated. As Justice Marshall explained, “lengthy and continuing isolation of [persons with disabilities] perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them.” Cleburne, 473 U.S. at 464; see also U.S. Commission on Civil Rights, supra, at 43-45. This evidence provided an ample basis for Congress to conclude that government discrimination was a root cause of “people with disabilities, as a group, occupy[ing] an inferior status in our society, and [being] severely disadvantaged
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socially, vocationally, economically, and educationally.” 42 U.S.C. § 12101(a)(6).
b. The ADA Is a Proportionate Response by Congress to Remedy and Prevent the Pervasive Discrimination It Found.
Section 5 of the Fourteenth Amendment gives Congress broad power to address what it found to be the “continuing existence of unfair and unnecessary discrimination and prejudice [that] denies people with disabilities the opportunity . . . to pursue those opportunities for which our free society is justifiably famous.” See 42 U.S.C. § 12101(a)(9). “It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.” Fullilove v. Klutznick, 448 U.S. 448, 483 (1980) (opinion of Burger, C.J.). “Prejudice, once let loose, is not easily cabined.” Cleburne, 473 U.S. at 464 (Marshall, J.).
After extensive investigation, Congress found that the exclusion of persons with disabilities from public facilities, programs, and benefits was a result of past and on-going discrimination. See 42 U.S.C. § 12101. In the ADA, Congress sought to remedy the effects of past discrimination and prevent like discrimination in the future by mandating that “qualified handicapped individual[s] must be provided with meaningful access to the benefit that the [entity] offers.” Alexander v. Choate,
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469 U.S. 287, 301 (1985) (emphasis added).10 Thus, Title II of the ADA requires 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. And, regulations implementing Title II of the ADA require that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). While this requirement imposes some burden on the States, that burden is not unlimited. Regulations implementing Title II of the ADA do not require public entities to make reasonable modifications to policies, practices, or procedures if "the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7).
c. In Enacting the ADA, Congress Was Redressing Constitutionally Cognizable Injuries.
In enacting the ADA, Congress was acting within the constitutional framework that has been laid out by the Supreme Court. As discussed above, the Equal Protection Clause prohibits invidious discrimination, that is “a classification whose
10 Alexander dealt with Section 504 of the Rehabilitation Act. The Eleventh Circuit, however, has held that the ADA imposes substantive requirements similar to Section 504. See, e.g., Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 n.2 (11th Cir. 1997); Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 913 n.3 (11th Cir. 1996).
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relationship to [a legitimate] goal is so attenuated as to render the distinction arbitrary or irrational.” Cleburne, 473 U.S. at 446. In Cleburne, the Supreme Court unanimously declared unconstitutional as invidious discrimination a decision by a city to deny a special use permit for the operation of a group home for people with mental retardation. A majority of the Court recognized that “through ignorance and prejudice [persons with disabilities] 'have been subjected to a history of unfair and often grotesque mistreatment.'” Id. at 454 (Stevens, J., concurring and quoting court of appeals decision in Cleburne, 726 F.2d 191, 197 (5th Cir. 1984)); see id. at 461 (Marshall, J., concurring in the judgment in part). The Court acknowledged that “irrational prejudice,” id. at 450, “irrational fears,” id. at 455 (Stevens, J.), and “impermissible assumptions or outmoded and perhaps invidious stereotypes,” id. at 465 (Marshall, J.), existed against people with disabilities in society at large and sometimes inappropriately infected government decision making.
While a majority of the Court declined to deem classifications based on disability as suspect or “quasisuspect,” id. at 442, the Court elected not to do so, in part, because it would unduly limit legislative solutions to problems faced by persons with disabilities. The Court reasoned that “[h]ow this large and diversified group is to be treated under the law is a difficult and often technical matter, very much a task for legislators guided by qualified professionals.” Id. at 442-443. It specifically noted with approval legislation such as
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Section 504, which aimed at protecting persons with disabilities, and openly worried that requiring governmental entities to justify their efforts under heightened scrutiny might “lead [governmental entities] to refrain from acting at all.” Id. at 444.
Nevertheless, the Court did affirm that “there have been and there will continue to be instances of discrimination against [persons with mental retardation] that are . . . properly subject to judicial correction under constitutional norms,” id. at 446, and found the actions at issue in that case unconstitutional. In doing so, the Court articulated several criteria for making such determinations in cases involving disabilities. First, the Court held that the fact that persons with mental retardation were “indeed different from others,” id. at 448, did not preclude a claim that they were denied equal protection; instead, it had to be shown that the difference was relevant to the “legitimate interests” furthered by the rules. Id. at 448. Second, in measuring the government's interest, the Court did not examine all conceivable rationales for the differential treatment of persons with mental retardation; instead, it looked to the record and found that “the record [did] not reveal any rational basis” for the decision to deny a special use permit. Ibid.; see also id. at 450 (stating that “this record does not clarify how . . . the characteristics of [people with mental retardation] rationally justify denying” them what would be permitted for others). Third, the Court found that “mere negative attitudes,
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or fear, unsubstantiated by factors which are properly cognizable . . . are not permissible bases” for imposing special restrictions on persons with disabilities. Id. at 448.
The Supreme Court has also recognized that the principle of equality is not an empty formalism divorced from the realities of day-to-day life, and thus the Equal Protection Clause is not limited to prohibiting unequal treatment of similarly situated persons. The Equal Protection Clause also guarantees “that people of different circumstances will not be treated as if they were the same.” United States v. Horton, 601 F.2d 319, 324 (7th Cir.), cert. denied, 444 U.S. 937 (1979) (quoting Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law 520 (1978)). By definition, persons with disabilities have “a physical or mental impairment that substantially limits one or more . . . major life activities.” 42 U.S.C. § 12102(2)(A). Thus, as to that life activity, “the handicapped typically are not similarly situated to the nonhandicapped.” Alexander, 469 U.S. at 298. The Constitution is not blind to this reality. It is a denial of equality when access to facilities, benefits and services is denied because the State refuses to acknowledge the “real and undeniable differences between [persons with disabilities] and others.” Cleburne, 473 U.S. at 444.
The State contends that the ADA is not proper remedial legislation because it imposes affirmative duties in addition to simple prohibitions. Def. Br. at 26-28. But, viewed in light of the underlying Equal Protection principles, the ADA is
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appropriate preventive and remedial legislation. First, it is preventive because it establishes a statutory scheme that attempts to detect government activities likely tainted by discrimination. By requiring the State to show on the record that distinctions it makes based on disability, or refusals to provide meaningful access to facilities, programs and services, are not the result of prejudice or stereotypes, but rather based on legitimate governmental objectives, the ADA attempts to ensure that inaccurate stereotypes or irrational fear are not the true cause of the decision. Cf. School Bd. of Nassau County v. Arline, 480 U.S. 273, 284-285 (1987). This is similar to the standards articulated by the Court in Cleburne.
Second, the ADA is remedial in that it attempts to ensure that the interests of people with disabilities are given due consideration. Not surprisingly, given their profound segregation from the rest of society, see 42 U.S.C. § 12101(a)(2), the needs of persons with disabilities were not taken into account when buildings were designed, standards were set, and rules were promulgated. See U.S. Commission on Civil Rights, supra, at 21-22, 38. Even when considered, their interests may not have been properly weighed, since “irrational fears or ignorance, traceable to the prolonged social and cultural isolation of [persons with disabilities] continue to stymie recognition of [their] dignity and individuality.” Cleburne, 473 U.S. at 467 (Marshall, J.).
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Policies and criteria unnecessarily relegating persons to life within the walls of an institution are real barriers. As Congress and the Supreme Court recognized, many of the problems faced today by persons with disabilities are a result of “thoughtlessness or indifference -- or benign neglect” to the interaction between purportedly “neutral” rules and persons with disabilities.11 As a result, Congress determined that for an entity to treat persons with disabilities as it did those without disabilities was not sufficient to eliminate the effects of years of segregation and to give persons with disabilities equally meaningful access to every aspect of society. See 42 U.S.C. § 12101; see also U.S. Commission on Civil Rights, supra, at 99. When persons with disabilities have been segregated, isolated, and denied effective participation in society, Congress may conclude that affirmative measures are necessary to bring them into the mainstream. Cf. Fullilove, 448 U.S. at 477-478.
The ADA thus falls neatly in line with other statutes that have been upheld as valid Section 5 legislation. For when, as here, there is evidence of a history of extensive discrimination, Congress may prohibit (or require modifications of) rules, policies and practices that tend to have a discriminatory effect on a class or individual, regardless of the intent behind those rules, policies and practices. In South Carolina v. Katzenbach,
11 See Senate Report, supra, at 6 (quoting without attribution Alexander, 469 U.S. at 295); House Report, supra, at 29 (same); 136 Cong. Rec. 10,870 (1990) (Rep. Fish); id. at 11,467 (Rep. Dellums).
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383 U.S. 301, 325-337 (1966), and again in City of Rome v. United States, 446 U.S. 156, 177 (1980), both cited with approval in City of Boerne, 117 S.Ct. at 2169, the Supreme Court upheld the constitutionality of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which prohibits covered jurisdictions from implementing any electoral change that is discriminatory in effect. 117 S.Ct. at 2169.12
In exercising its broad power under Section 5 to remedy the ongoing effects of past discrimination and prevent present and future discrimination, Congress is afforded “wide latitude.” City of Boerne, 117 S. Ct. at 2164. “It is for Congress in the first instance to 'determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference.” Id. at 2172 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1996)). This holding is consistent with all the other courts that have considered the issue since Seminole Tribe, which are in agreement that Congress' abrogation of Eleventh Amendment immunity for suits under the ADA is “appropriate legislation” to enforce the Fourteenth Amendment. See Kimel, 139 F.3d at 1433, Seaborn, 143
12 Defendants argue that the ADA is inconsistent with the Tenth Amendment because it usurps power reserved to the states. Def. Br. at 20 & n.7. They are simply incorrect. The Fourteenth Amendment “fundamentally altered the balance of state and federal power struck by the Constitution.” Seminole Tribe, 517 U.S. at 59. Thus a long “line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States.” Fitzpatrick, 427 U.S. at 455.
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F.3d at 1405 (applying Kimel); Crawford, 115 F.3d at 487; Coolbaugh, 136 F.3d at 430; Clark, 123 F.3d at 1270-71; Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996); Mayer v. University of Minn., 940 F. Supp. 1474 (D. Minn. 1996). See also Autio, 968 F. Supp. 1366 (D. Minn. 1997), aff'd, 140 F.3d 803, 806 (8th Cir. 1998), vacated and reh'g granted (July 7, 1998). Although some of these decisions pre-date City of Boerne, for the reasons discussed above they remain good law. III. THE ELEVENTH AMENDMENT DOES NOT IMMUNIZE DEFENDANTS
AGAINST PLAINTIFFS' REHABILITATION ACT CLAIMS. Defendants contend that plaintiffs' Rehabilitation Act claims must be dismissed because the Rehabilitation Act is invalid Spending Clause legislation that does not properly abrogate states' Eleventh Amendment immunity. Def. Br. at 28-30. Defendants' argument fails for two reasons. First, the Rehabilitation Act, like the ADA, is legislation to enforce the Equal Protection guarantees of the Fourteenth Amendment -- not merely a statute enacted pursuant to the Spending Clause. Clark, 123 F.3d at 1270. Second, even if the Rehabilitation Act were enacted pursuant to the Spending Clause, it is nonetheless valid because it provides ample notice to states that abrogation of Eleventh Amendment rights is a condition of receipt of federal funds. Id. at 1271. A. The Rehabilitation Act, Like the ADA, Is a Valid
Abrogation of States' Eleventh Amendment Immunity Under Section 5 of the Fourteenth Amendment. Congress has lawfully abrogated states' Eleventh Amendment immunity in the Rehabilitation Act if: (1) it has "unequivocally
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expressed its intent to abrogate immunity" in the language of the statute, and (2) it "acted pursuant to a valid exercise of power" in enacting the statute. Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).
Congress amended the Rehabilitation Act in 1973 to make clear that the statute was intended to abrogate states' Eleventh Amendment immunity. Section 2000d-7 of Title 42 provides that a "State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973." Thus, Congress' intent to abrogate states' Eleventh Amendment immunity under the Rehabilitation Act is unambiguous. Lussier v. Dugger, 904 F.2d 661, 668-70 (11th Cir. 1990). See also Lane v. Pena, 518 U.S. 187, 196-99 (1996); Clark, 123 F.3d at 1271; Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996).
It is equally clear that the Rehabilitation Act, like the ADA, was enacted to enforce the Equal Protection Clause. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244-245 n.4 (1985);13 Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 472 n. 2 (1987) ("The Rehabilitation Act was passed pursuant to § 5 of the Fourteenth Amendment. Congress therefore had the power to subject
13 Although the Supreme Court held in Atascadero in 1985 that the Eleventh Amendment abrogation was ineffective because of the absence of an express abrogation (an absence that Congress remedied in 1986 by enacting 42 U.S.C. § 2000d-7), it did not question the Ninth Circuit's holding that the Rehabilitation Act was legislation to enforce the Equal Protection Clause.
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unconsenting States to suit in federal court" (citations omitted).14 And, for the reasons stated in Section II supra, the Rehabilitation Act is valid legislation to enforce the Equal Protection Clause, just as the ADA is valid legislation to enforce the Equal Protection Clause. Clark, 123 F.3d at 1270-71; Mayer, 940 F. Supp. at 1479; Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996). Thus, the Eleventh Amendment affords defendants no protection from plaintiffs' Rehabilitation Act claims.15
B. The State Waived Its Eleventh Amendment Immunity to Rehabilitation Act Suits by Accepting Federal Funds After the Enactment of Section 2000d-7.
It is a well-settled matter of law, and defendants concede,
that a state may waive its Eleventh Amendment immunity by
participating in a program that receives federal funds. Edelman
v. Jordan, 415 U.S. 651, 672 (1974); Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 238 n.1 (1985) (“[a] state may effectuate
a waiver of its constitutional immunity by . . . waiving its
immunity to suit in the context of a particular federal
14 See also Department of Educ. v. Katherine D., 531 F. Supp. 517, 530 (D. Haw. 1982), rev'd in part on other grounds, 727 F.2d 809 (9th Cir. 1983), cert. denied, 471 U.S. 1117 (1985).
15 See Hunter v. Chiles, 944 F. Supp. 914, 917 (S.D. Fla. 1996), appeal dismissed, June 23, 1997; Mayer, 940 F. Supp. at 1478-1480; Niece, 941 F. Supp. at 1501-1504. See also United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503 (2d Cir. 1990); Santiago v. New York State Dep't of Correctional Services, 945 F.2d 25, 31 (2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992); Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341, 1363-1364 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996); Martin v. Voinovich, 840 F. Supp. 1175, 1187 (S.D. Ohio 1993).
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program”). Defendants contend, however, that they are immune from plaintiffs' Rehabilitation Act claim because the Rehabilitation Act does not provide them with notice sufficient to support a waiver of immunity under the Spending Clause. Def. Br. at 28-30. Defendants' argument is meritless.
By enacting 42 U.S.C. § 2000d-7, Congress provided unambiguous notice to states that waiver of Eleventh Amendment immunity was a condition of receipt of funds under the Rehabilitation Act. Clark, 123 F.3d at 1271. See Lane, 518 U.S. at 198; Lussier, 904 F.2d at 669. Thus, defendants' argument that they did not waive their right to immunity because they lacked notice is simply unavailing. Clark, 123 F.3d at 1270-71. IV. THE AMERICANS WITH DISABILITIES ACT AND THE INTEGRATION
REGULATION PROVIDE A CAUSE OF ACTION FOR UNNECESSARY INSTITUTIONALIZATION. The ADA “integration regulation,” promulgated by the Department of Justice under Title II of the ADA, requires covered public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).16 The regulation, along with Title II of the ADA, 42 U.S.C. § 12131 et seq., provides the basis for a challenge to unnecessary institutional segregation where professional
16 The ADA integration regulation has “the force of law.” L.C. v. Olmstead, 138 F.3d 893, 898 (11th Cir. 1998), petition for reh'g en banc denied (July 1, 1998); Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir.), cert. denied sub nom., Pennsylvania Secretary of Pub. Welfare v. Idell S., 516 U.S. 813 (1995).
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assessments determine that institutionalized individuals could be served in integrated community settings appropriate to their needs. See L.C. v. Olmstead, 138 F.3d 893, 902-03 (11th Cir. 1998) petition for reh'g en banc denied (July 1, 1998); see also id. at 898 (“the denial of community placements to [institutionalized] individuals with disabilities. . . is precisely the kind of segregation that Congress sought to eliminate” through enactment of the ADA); see generally Helen L. v. DiDario, 46 F.3d 325, 332-33 (3d Cir.) (unnecessary institutional segregation of persons with disabilities is prohibited by Title II of the ADA and the integration regulation promulgated thereunder), cert. denied sub. nom., Pennsylvania Secretary of Pub. Welfare v. Idell S., 516 U.S. 813 (1995).
In L.C., the Eleventh Circuit upheld a finding that the State of Georgia had discriminated against two persons with psychiatric disabilities “by confining them in a segregated institution rather than in an integrated community-based program.” 138 F.3d at 895. The Eleventh Circuit conclusively repudiated the argument that in order to state a claim under the ADA, plaintiffs were required to make “a comparison of the treatment of individuals with disabilities against that of healthy non-disabled persons.” Id. at 896. The State of Florida advances the same failed argument here, and it must be repudiated again, as it was in L.C.
Defendants also argue that the relief requested by the plaintiffs involves a “fundamental alteration” as a matter of
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law, and that the complaint should therefore be dismissed. However, as the complaint has been drawn, the question is factbound and is inappropriate for resolution at this stage of the litigation. See L.C., 138 F.3d at 905 (Georgia's defense of "fundamental alteration" to community placement is one that is properly decided by the trial court).
A. Plaintiffs Are Not Required to Allege that They Experience Discrimination as Compared to Non-disabled Persons.
Defendants maintain that the failure to provide developmentally disabled individuals with appropriate services in the community cannot, as a matter of law, constitute discrimination prohibited by the ADA, because plaintiffs have not alleged that non-disabled persons receive similar services in community settings. Def. Br. at 10-11; see also id. at 12-13 (“In this action, Plaintiffs seek access to community-based services (as opposed to institutional services) for treatment of their disabilities. As a matter of law, Plaintiffs cannot allege that non-disabled persons would be eligible for the same services. Therefore, under the circumstances of this case, Plaintiffs can state no ADA cause of action”).
To the contrary, the Eleventh Circuit has held that institutionalized persons with disabilities can state a claim for discrimination under the ADA and seek community-based services without alleging that non-disabled persons receive community services from which the disabled plaintiffs have been excluded:
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Under [28 C.F.R.] § 35.130(d), the failure to provide the most integrated services appropriate to the needs of disabled persons constitutes unlawful disabilitybased discrimination -- even though such services may not be needed by non-disabled individuals -- because such segregation perpetuates their status as secondclass citizens unfit for community life. As the Third Circuit explained in holding that the unnecessary segregation of disabled persons violates Title II of the ADA, '[t]he ADA is intended to ensure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner that shunts them aside, hides, and ignores them.’
L.C., 138 F.3d at 899 (emphasis added; quoting Helen L., 46 F.3d
at 335). One other circuit court as well as district courts
examining this question have reached the same conclusion. Helen
L., 46 F.3d at 333-35; Williams v. Wasserman, 937 F. Supp. 524,
529-30 (D. Md. 1996); Messier v. Southbury Training School, 916
F. Supp. 133, 140-42 (D. Conn. 1996).
Here, as in L.C.:
The fact that [plaintiffs] seek community-based treatment services that only disabled persons need does not foreclose their claim that they were unnecessarily segregated. The ADA does not only mandate that individuals with disabilities be treated the same as persons without such disabilities. Underlying the ADA’s prohibitions is the notion that individuals with disabilities must be accorded reasonable accommodations not offered to other persons in order to ensure that individuals with disabilities enjoy equality of opportunity, full participation, independent living, and economic self-sufficiency. . . . This principle . . . runs throughout the ADA.
138 F.3d at 899 (citations omitted).
And, as in L.C., “[r]educed to its essence, the State’s
argument is that Title II of the ADA affords no protection to
individuals with disabilities who receive public services
designed only for individuals with disabilities.” Id. at 896.
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The same response received by the defendants in L.C. applies
here:
The State has not pointed to any legal authority that supports such a reading of Title II of the ADA and its integration regulation, § 35.130(d), and we can find none. To the contrary, we find overwhelming authority in the plain language of Title II of the ADA, its legislative history, the Attorney General’s Title II regulations, and the Justice Department’s consistent interpretation of those regulations, to support [plaintiffs'] position.
Id. In other words, persons with disabilities need not compare
the treatment they receive with that received by non-disabled
persons, in order to state a claim under the ADA. Defendants'
attempt to dismiss the complaint on this ground should be
denied.17
B. Whether Appropriate Community Placement of the Plaintiff Class Would Require a “Fundamental Alteration” of a State Program is a Fact-bound Question.
The regulations promulgated under the ADA require that:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7). Thus, the burden is on the defendants
to prove that the relief sought by the plaintiffs would
constitute a fundamental alteration of its programs.
17 Presumably, the only reason the defendants raised the argument conclusively rejected in L.C. was to preserve it in the event the L.C. decision was reheard en banc or the State of Georgia petitioned for certiorari to the United States Supreme Court. On July 1, 1998, the Eleventh Circuit denied rehearing in L.C.
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The Eleventh Circuit determined in L.C. that the issue of whether community placement from an institution would entail a “fundamental alteration” in a State program is one that is properly decided by the trial court. 138 F.3d at 905. The Eleventh Circuit remanded the case to the district court for further factual development with a list of factors that the court should consider. Id. These factors included: (1) whether the additional expenditures (if any) required for community-based care would be unreasonable in light of the relevant State budget, (2) whether it would be unreasonable to require the State to use additional available Medicaid waiver slots, as well as any authority it might have to transfer funds from institutionalized care to community-based care, and (3) whether any difference in the cost of providing institutional or community-based care would itself lessen the State’s burden. Id. This list was “not exclusive” and the court stated specifically that the “district court may consider any other factors it believes are relevant to the fundamental alteration inquiry.” Id.
L.C. left open the “difficult questions of fundamental alteration” that might be present in a class action seeking “deinstitutionalization” of a state hospital, as opposed to an action seeking community placement for a few individual plaintiffs. 138 F.3d at 905 & n.10. Although the Brown plaintiffs do not request closure of any state institution, they seek community placement for each individual class member for whom such placement would be appropriate. Florida maintains that
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the relief requested by the plaintiffs would require, as a matter of law, a “fundamental alteration,” and that the relief therefore cannot be required under the ADA. Def. Br. at 16-19. However, as the plaintiffs’ complaint has been drawn, the question of “fundamental alteration” is fact-bound, and cannot be resolved at this stage of the litigation.
For example, defendants state that placement of hundreds of class members in the community would “impact” state programs. Def. Br. at 18 n.6; see also 15 n.4. But an “impact,” particularly one that is merely speculative in nature, is not a per se fundamental alteration, especially where, as here, the State already has a community-based service system for persons with developmental disabilities and its legislature has mandated the continued development of that system. See, e.g., Fla. Stat. Ann. §§ 393.066, 393.13, 419.001; see also Exhibit A (June 14, 1996 letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, United States Department of Justice, to Governor Lawton Chiles, reporting findings of investigation of Landmark Learning Center, at 4).
Defendants encapsulate plaintiffs’ requested relief as “requiring [the State] to dismantle its provision of institutionalized care to individuals with disabilities.” Def. Br. at 18. Defendants mischaracterize the relief that plaintiffs seek in their complaint. The injunction that plaintiffs seek contemplates the continued existence of all or some of the DSIs. For example, the plaintiff class is defined as persons who reside
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in the DSIs or in the future may reside there (Complaint ¶¶ 1, 30), and the relief sought by the plaintiffs includes not merely community placement (Complaint at 41-44), but also extensive reform of conditions within the institutions. Complaint at 4144.
Plaintiffs seek community placement of each class member for whom such placement would be appropriate (see Complaint at 41-44 & ¶ 126), and maintain that the State can offer them, without a fundamental increase in cost, “the opportunity to participate in, and the benefits of, public services and programs that are as effective and meaningful as those delivered to other citizens and that are delivered in less separate, more integrated settings.” Complaint ¶¶ 121, 126.
Even assuming the relief requested would result in administrative inconvenience or additional expenditures by the State, that alone would not necessarily constitute a “fundamental alteration.” L.C., 138 F.3d at 902 (“the plain language of the ADA’s Title II regulations, as well as the ADA’s legislative history, make clear that Congress wanted to permit a cost defense in only the most limited of circumstances”; and, according to the legislative history of Title II, “[t]he fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services”). See also Kathleen S. v. Department of Pub. Welfare, No. 97-6610, slip op. at 25 (E.D.Pa. June 26, 1998)(“The Court finds that complying
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with the ADA's integration mandate does not require a fundamental
alteration of the services that the Commonwealth requires DPW to
furnish in connection with community placement” of several
hundred institutionalized mentally ill class members)(attached as
Exhibit B); Charles Q. v. Houston, 1996 WL 447549, *5-6 (M.D. Pa. 1996); Wasserman, 937 F. Supp. at 528, 530.18 Cf. Civic Assn. of
the Deaf of New York City v. Giuliani, 915 F. Supp. 622, 636-37
(S.D.N.Y. 1996) (public entity must demonstrate more than “high”
expense in order for court to find that accommodation is unduly onerous under ADA Title II regulations).19
As the plaintiffs’ complaint has been drawn, the question
whether the relief sought by the plaintiffs would constitute a
“fundamental alteration” is fact-bound and, as such, is
inappropriate for resolution at this stage of the litigation.
See, e.g., L.C.,138 F.3d at 905 (remanding to trial court for
determination of whether community placement would constitute
18 Although the court in Wasserman opined in dicta that the Third Circuit's decision in Helen L. “does not support the imposition of court-ordered relief that would require 'transferring millions of dollars from institutions to the community',” the court held that the administrative and financial implications of the relief requested (including community placement) by the class in Wasserman were fact issues that required further development, and therefore the court denied the defendants' motion for summary judgment on plaintiffs' ADA claims. 937 F. Supp. at 528, 531 (quoting brief submitted by the Wasserman defendants).
19 In any case, if defendants are suggesting (Def. Br. at 15 & n.4; 18) that persons who do not require institutional care should remain institutionalized in order to preserve the viability of institutions for those who do require that level of care, there is no legal precedent for that view.
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“fundamental alteration”); Wasserman, 937 F. Supp. at 528 (whether defendants were correct that the transfer of many plaintiffs--conceivably “hundreds”--from institutional settings to community placements would require a “fundamental alteration” of the State’s mental health care delivery system was a disputed issue of material fact precluding summary judgment); Anderson v. Department of Pub. Welfare, 1998 WL 154654, *9-10 (E.D. Pa. 1998) (whether class action seeking changes to managed care program covered by ADA Title II would require a fundamental alteration was a fact issue precluding summary judgment, where the relief requested included architectural modifications, provision of information in different formats, and alternative methods of administration). Cf. Eric L. v. Bird, 848 F. Supp. 303, 313-14 (D.N.H. 1994) (denying motion to dismiss complaint presenting claims under Title II of the ADA and Section 504 of the Rehabilitation Act, where plaintiff class of institutionalized children sought appropriate community placement; observing that plaintiffs' ADA and Section 504 claims presented fact issues); Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d. Cir. 1995) (refusing to dismiss ADA Title III complaint for failure to state a claim, because determination of whether requested accommodation would be reasonable “involves a fact-specific, case-by-case inquiry”).
In sum, contrary to defendants' position that the relief sought in plaintiffs' complaint is a per se fundamental alteration, the State must bear the burden of proving that
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placing class members into community programs pursuant to individualized determinations by professionals would in fact require a fundamental alteration in the State's programs. L.C., 138 F.3d at 904-05; Kathleen S., No. 97-6610, slip op. at 25-26 (concluding after a bench trial that the State had not carried its burden under 28 C.F.R. § 35.130(b)(7), 28 C.F.R. § 35.130(d) and Title II of the ADA, of producing evidence in support of its claim that providing appropriate community facilities to institutionalized, mentally ill class members would result in a “fundamental alteration,” and ordering community placement of class members for whom professionals determine such placement is appropriate).
CONCLUSION For the reasons stated herein, the Court should deny defendants’ motions to dismiss as to plaintiffs' ADA claims, and as to the defendants' argument that Section 504 of the Rehabilitation Act is unconstitutional. Title II of the ADA and Section 504 of the Rehabilitation Act are constitutional and a valid abrogation of the State’s Eleventh Amendment immunity. In order to state a claim for discrimination under the ADA, plaintiffs are not required to allege that non-disabled persons are provided the same services the plaintiffs seek. Finally, the question of what constitutes a “fundamental alteration” of a state program for purposes of Title II of the ADA is, in this case, a fact-bound issue, precluding dismissal for failure to state a claim as a matter of law.
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Dated:

Washington, D.C. July 17, 1998

Respectfully Submitted,

THOMAS E. SCOTT

BILL LANN LEE

United States Attorney

Acting Assistant Attorney General

Southern District of Florida Civil Rights Division

VERONICA HARRELL-JAMES Assistant U.S. Attorney 99 N.E. 4th Street Miami, FL 33132 (305) 961-9327

JOHN L. WODATCH Chief Disability Rights Section
STEVEN H. ROSENBAUM Chief Special Litigation Section

RENEE WOHLENHAUS Acting Deputy Chief Disability Rights Section

ROBINSUE FROHBOESE Deputy Chief Special Litigation Section

PHILIP L. BREEN Special Legal Counsel Disability Rights Section

__________________________ LOUISA A. SMITH JEANINE WORDEN Attorneys Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6216

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CERTIFICATE OF SERVICE
I hereby certify that on July 17, 1998, I sent by Federal Express copies of the United States' Memorandum of Law as Amicus Curiae and Intervenor in Opposition to Defendants' Motions to Dismiss; the United States' Motion to Intervene as of Right and for Leave to Participate as Amicus Curiae; and the United States' Motion for Leave to File Memorandum of Law Exceeding Twenty Pages, to the following counsel of record:
The Honorable Robert A. Butterworth Attorney General
Stephanie A. Daniel, Esq. Assistant Attorney General
Chesterfield Smith, Jr., Esq. Assistant Attorney General
Office of the Attorney General The Capitol, Suite PL01 Tallahassee, Florida 32399
J.C. Miller, Esq. Office of the General Counsel Department of Labor/Employment Security Hartman Building, Suite 307 2012 Capitol Circle, S.E. Tallahassee, Florida 32399
Andrew J. Meyers, Esq. Special Counsel 14600 South Military Trail DelRay Beach, Florida 33445
Peter Nimkoff, Esq. Litigation Director Advocacy Center for Persons
with Disabilities, Inc. 2671 Executive Center Circle West
Suite 100 Tallahassee, Florida 32301
Ellen M. Saideman, Esq. Senior Attorney
Juliette E. Lippman, Esq. Senior Attorney
Advocacy Center for Persons with Disabilities, Inc.
2901 Stirling Road, Suite 206 Fort Lauderdale, Florida 33312
_____________________ LOUISA A. SMITH
Attorney

 </s> Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 1 of 32
U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:98−cv−00673−JEM

CLOSED

Brown, et al v. Chiles, et al Assigned to: Judge Jose E. Martinez Demand: $0 Case in other court: 05−11903−II
05−11903−II
05−15167−GG
05−15167−GG
Appellantsmotiontoremedyd
U.S. District Court, 0:96−cv−00000 Cause: 42:12182 Americans with Disabilities Act Plaintiff

Date Filed: 03/24/1998 Date Terminated: 12/30/2003 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Shelyndra Brown by her mother and next friend, JESSE O'NEIL TERMINATED: 05/10/2000

represented by Ellen Marjorie Saideman Advocacy Center for Persons with Disabilities 4411 Sheridan Street Hollywood, FL 33021 954−967−1493 Fax: 967−1496 TERMINATED: 05/10/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman Advocacy Center for Persons with Disabilities 4411 Sheridan Street Hollywood, FL 33021 954−967−1493 TERMINATED: 05/10/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff Advocacy Center for Persons with Disabilities Inc. Webster Building 2671 Executive Center Circle West Suite 100 Tallahassee, FL 32301−5092 850−488−9071 Fax: 488−8640 TERMINATED: 05/10/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 413−587−6265 Fax: 586−5711 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 2 of 32

Ronald Adside by his father and next friend, CLAUDE F. ADSIDE

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Isaias Ortiz Advocacy Center for Persons with Disabilities 4411 Sheridan Street Hollywood, FL 33021 954−967−1493X213 Fax: 967−1496 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Fleischner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 586−5711 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Henry Sims by his mother and next friend, JEANETTE HARDIN

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Isaias Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Fleischner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 3 of 32

Plaintiff Mervyn Morell by his father and next friend, ISADRO MORELL
Plaintiff Lynda Faye Johnson by her guardian advocate and next friend, SYLVIA SCOTT

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Isaias Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fleischner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Isaias Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert D. Fleischner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 4 of 32

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kerry Mangham

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Isaias Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Fleischner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Advocacy Center for Persons With Disabilities, Inc.

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hubert Aubrey Grissom , Jr. Advocacy Center for Persons with Disabilities 1000 N Ashley Drive Suite 513 Tampa, FL 33602 813−233−2920 Fax: 233−2917 Email: h.grissom@advocacycenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Isaias Ortiz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 5 of 32
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Lawton Chiles in his official capacity as Governor of the State of Florida
Defendant Edward Feaver in his official capacity as Secretary, STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES
Defendant Tamara Allen in her official capacity as Secretary, STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF VOCATIONAL REHABILITATION

represented by Chesterfield H. Smith , Jr. Attorney General's Office Florida Department of Legal Affairs PL−01 The Capitol Tallahassee, FL 32399−1050 850−414−3665 Fax: 850−488−4872 Email: Chesterfield.Smith@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York Dilworth Paxson 112 Market Street 8th Floor Harrisburg, PA 17101 717−236−4812 Fax: 236−7811 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Jeffrey Meyers Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, FL 33301−1801 954−357−7600 Fax: 357−7641 Email: ameyers@broward.org TERMINATED: 07/27/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 6 of 32

JC Miller Thompson Hine 1920 N Street, N.W., Suite 800 Washington, DC 20036 202−263−4153 Fax: 331−8330 Email: jc.miller@thompsonhine.com TERMINATED: 07/27/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel Attorney General Office Department of Legal Affairs The Capitol PL−01 Tallahassee, FL 32399−1050 850−414−3300 Fax: 488−4872 Email: Stephanie.Daniel@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles Kimber in his official capacity as Deputy Secretary for the DEPARTMENT OF CHILDREN AND FAMILIES

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Mayfield in his official capacity as Acting Superintendent, LANDMARK LEARNING CENTER

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tracy Clemmons in his official capacity as Superintendent, SUNLAND CENTER at MARIANNA

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 7 of 32

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Murphy in his official capacity as Superintendent, TACACHALE SUNLAND

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert Morin in his official capacity as Superintendent, GULF COAST CENTER

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Anita Bock in her official capacity as District Administrator for the Department of Children and Families in District XI

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Awad in his official capacity as District Administrator for the Department of Children and Families in District II

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 8 of 32

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ester Tibbs in her official capacity as District Administrator for the Department of Children and Families in District III

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Frances Gibbons in his official capacity as District Administrator for the Department of Children and Families in District VIII

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Doug Cook in his official capacity as Director of the Agency for Health Care Administration for the State of Florida

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard T. Lutz in his official capacity as Director of Florida Medicaid

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 9 of 32

ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jeb Bush

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jerry Regier

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Shelly Brantley

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Charles M. Hood

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Bob Williams

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Ora L. White

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Nora S. Brake

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant M.D Rhonda Medows

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Bob Sharpe

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 10 of 32
ATTORNEY TO BE NOTICED
Defendant Voice of the Retarded
Defendant Florida's Voice on Mental Retardation
Defendant Secretary Andrew Agwunobi
Defendant Director Jane E. Johnson
Defendant Mac McCoy
Defendant Bill Palmer
Defendant Don Thomas

Date Filed 03/24/1998 03/24/1998 03/24/1998
03/24/1998 03/24/1998 03/24/1998 03/24/1998 03/24/1998 03/24/1998 03/24/1998 03/24/1998 03/24/1998 03/24/1998

# Docket Text
1 Class Action COMPLAINT filed; FILING FEE $150.00 RECEIPT # 513333; A−7; LRJ (cg, Deputy Clerk) (Entered: 03/26/1998)
Magistrate identification: Magistrate Judge Linnea R. Johnson (cg, Deputy Clerk) (Entered: 03/26/1998)
2 NOTICE of Pendency of Other Action. by Shelyndra Brown, Ronald Adside, Henry Sims, Mervyn Morell, Lynda Faye Johnson, Kerry Mangham, Advocacy Center Re: 96−6619−CV−Ferguson (cg, Deputy Clerk) (Entered: 03/26/1998)
3 SUMMONS(ES) issued for Lawton Chiles (cg, Deputy Clerk) (Entered: 03/26/1998)
4 SUMMONS(ES) issued for Edward Feaver (cg, Deputy Clerk) (Entered: 03/26/1998)
5 SUMMONS(ES) issued for Tamara Allen (cg, Deputy Clerk) (Entered: 03/26/1998)
6 SUMMONS(ES) issued for Charles Kimber (cg, Deputy Clerk) (Entered: 03/26/1998)
7 SUMMONS(ES) issued for Michael Mayfield (cg, Deputy Clerk) (Entered: 03/26/1998)
8 SUMMONS(ES) issued for Tracy Clemmons (cg, Deputy Clerk) (Entered: 03/26/1998)
9 SUMMONS(ES) issued for Michael Murphy (cg, Deputy Clerk) (Entered: 03/26/1998)
10 SUMMONS(ES) issued for Robert Morin (cg, Deputy Clerk) (Entered: 03/26/1998)
11 SUMMONS(ES) issued for Anita Bock (cg, Deputy Clerk) (Entered: 03/26/1998)
12 SUMMONS(ES) issued for John Awad (cg, Deputy Clerk) (Entered: 03/26/1998)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 11 of 32

03/24/1998 03/24/1998 03/24/1998 03/24/1998 04/20/1998 05/18/1998
05/18/1998
05/18/1998 05/18/1998
05/18/1998
05/20/1998 05/28/1998 06/01/1998 06/09/1998 06/15/1998 06/22/1998 07/01/1998 07/01/1998 07/07/1998

13 SUMMONS(ES) issued for Ester Tibbs (cg, Deputy Clerk) (Entered: 03/26/1998)
14 SUMMONS(ES) issued for Frances Gibbons (cg, Deputy Clerk) (Entered: 03/26/1998)
15 SUMMONS(ES) issued for Doug Cook (cg, Deputy Clerk) (Entered: 03/26/1998)
16 SUMMONS(ES) issued for Richard T. Lutz (cg, Deputy Clerk) (Entered: 03/26/1998)
17 NOTICE of attorney appearance for Tamara Allen by JC Miller, Andrew Jeffrey Meyers (Former Deputy Clerk) (Entered: 04/22/1998)
18 MOTION by Lawton Chiles, Edward Feaver, Charles Kimber, Michael Mayfield, Tracy Clemmons, Michael Murphy, Robert Morin, Anita Bock, John Awad, Ester Tibbs, Frances Gibbons, Doug Cook, Richard T. Lutz to dismiss complaint and to strike certain portions of plaintiff's complaint (Former Deputy Clerk) (Entered: 05/19/1998)
19 MOTION by Lawton Chiles, Edward Feaver, Charles Kimber, Michael Mayfield, Tracy Clemmons, Michael Murphy, Robert Morin, Anita Bock, John Awad, Ester Tibbs, Frances Gibbons, Doug Cook, Richard T. Lutz for entry of Order to Show Cause (Former Deputy Clerk) (Entered: 05/19/1998)
20 MOTION by Michael Mayfield, Tracy Clemmons, Michael Murphy, Robert Morin for protective order (Former Deputy Clerk) (Entered: 05/19/1998)
21 MOTION by Lawton Chiles, Edward Feaver, Charles Kimber, Michael Mayfield, Tracy Clemmons, Michael Murphy, Robert Morin, Anita Bock, John Awad, Ester Tibbs, Frances Gibbons, Doug Cook, Richard T. Lutz for leave to file legal memorandum in support of defendants' motion to dismiss in excess of twenty pages in length (proposed memorandum at docket clerk's desk) (Former Deputy Clerk) (Entered: 05/19/1998)
87 MEMORANDUM by Richard T. Lutz, Doug Cook, Frances Gibbons, Ester Tibbs, John Awad, Anita Bock, Robert Morin, Michael Murphy, Tracy Clemmons, Michael Mayfield, Charles Kimber, Tamara Allen, Edward Feaver, Lawton Chiles in support of [18−1] motion to dismiss complaint, [18−2] motion to strike certain portions of plaintiff's complaint (dp, Deputy Clerk) (Entered: 11/06/1998)
22 MOTION by Tamara Allen to dismiss the Plaintiff's complaint , and for more definite statement (Former Deputy Clerk) (Entered: 05/26/1998)
23 MOTION with memorandum in support by All Plaintiffs to extend time to 6/15/98 to respond to motions for protective order, to dismiss and to show cause (sk, Deputy Clerk) (Entered: 06/02/1998)
24 ORDER granting [23−1] motion to extend time to 6/15/98 to respond to motions for protective order, to dismiss and to show cause ( signed by Judge William M. Hoeveler on 6/1/98) CCAP (sk, Deputy Clerk) (Entered: 06/03/1998)
25 NOTICE of unavailabiilty by Tamara Allen (sk, Deputy Clerk) (Entered: 06/10/1998)
26 Unopposed MOTION with memorandum in support by All Plaintiffs to extend time to respond to defendants' motion for a protective order (Former Deputy Clerk) (Entered: 06/18/1998)
27 MOTION by All Defendants to transfer case to Judge Ferguson (sk, Deputy Clerk) (Entered: 06/29/1998)
28 MOTION by Tamara Allen for Andrew Meyers to appear pro hac vice (sk, Deputy Clerk) (Entered: 07/10/1998)
Filing Fee Paid; FILING FEE $ 0 (sk, Deputy Clerk) (Entered: 07/10/1998)
60 ORDER transferring case ( signed by Judge William M. Hoeveler on 7/7/98) CCAP (Former Deputy Clerk) (Entered: 08/13/1998)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 12 of 32

07/07/1998 07/09/1998 07/10/1998 07/10/1998 07/10/1998
07/13/1998
07/13/1998
07/13/1998
07/15/1998
07/17/1998 07/17/1998 07/17/1998 07/20/1998
07/20/1998 07/20/1998 07/21/1998
07/21/1998
07/24/1998 07/31/1998 07/31/1998 07/31/1998

CASE reassigned to Judge Wilkie D. Ferguson Jr. (Former Deputy Clerk) (Entered: 08/13/1998)
29 RESPONSE by Tamara Allen in opposition to [27−1] motion to transfer case to Judge Ferguson (sk, Deputy Clerk) (Entered: 07/16/1998)
30 MOTION by All Plaintiffs for appointment of custodian/guardian ad litem (sk, Deputy Clerk) (Entered: 07/17/1998)
31 RESPONSE by All Plaintiffs to [19−1] motion for entry of Order to Show Cause (sk, Deputy Clerk) (Entered: 07/17/1998)
32 Notice of filing Stefan AFFIDAVIT by All Plaintiffs Re: [30−1] motion for appointment of custodian/guardian ad litem (sk, Deputy Clerk) (Entered: 07/17/1998)
33 RESPONSE by All Plaintiffs to [18−1] motion to dismiss complaint, [18−2] motion to strike certain portions of plaintiff's complaint (sk, Deputy Clerk) (Entered: 07/17/1998)
34 MOTION by All Plaintiffs for leave to file response memorandum in excess of twenty pages nun pro tunc (see DE 33 response memorandum) (sk, Deputy Clerk) (Entered: 07/17/1998)
35 Notice of filing documents/RESPONSE by All Plaintiffs in support of [33−1] motion response, [18−1] motion to dismiss complaint, [18−2] motion to strike certain portions of plaintiff's complaint (sk, Deputy Clerk) (Entered: 07/17/1998)
36 RESPONSE by All Plaintiffs to [22−1] motion to dismiss the Plaintiff's complaint, [22−2] motion for more definite statement (dp, Deputy Clerk) (Entered: 07/17/1998)
40 MOTION with memorandum in support by All Plaintiffs to extend time to file class certification motion nunc pro tunc (dp, Deputy Clerk) (Entered: 07/21/1998)
41 NOTICE of filing documents in support of motion for class certification by All Plaintiffs (dp, Deputy Clerk) (Entered: 07/21/1998)
42 MOTION with memorandum in support by All Plaintiffs for class certification (dp, Deputy Clerk) (Entered: 07/21/1998)
37 MOTION with memorandum in support to intervene in the first of two motions to dismiss the complaint by United States , and for leave to participate as amicus curiae (dp, Deputy Clerk) (Entered: 07/21/1998)
38 MOTION by United States for leave to file memorandum in excess of 20 pages (dp, Deputy Clerk) (Entered: 07/21/1998)
39 RESPONSE by United States to [22−1] motion to dismiss the Plaintiff's complaint, [18−1] motion to dismiss complaint (dp, Deputy Clerk) (Entered: 07/21/1998)
43 ORDER granting [30−1] motion for appointment of Susan Sefan as custodian/guardian ad litem ( signed by Judge Wilkie D. Ferguson Jr. on 7/21/98) CCAP (sk, Deputy Clerk) (Entered: 07/29/1998)
44 ORDER granting [26−1] motion to extend time to 8/3/98 to respond to defendants' motion for a protective order ( signed by Judge Wilkie D. Ferguson Jr. on 7/20/98) CCAP (sk, Deputy Clerk) (Entered: 07/29/1998)
45 RESPONSE by All Defendants to [30−1] motion for appointment of custodian/guardian ad litem (sk, Deputy Clerk) (Entered: 07/30/1998)
46 MOTION by All Defendants for reconsideration of [43−1] order appointing guardian ad litem (sk, Deputy Clerk) (Entered: 08/06/1998)
47 REPLY by All Defendants to response to [18−1] motion to dismiss complaint (sk, Deputy Clerk) (Entered: 08/06/1998)
48 MOTION by All Defendants for leave to file /accept reply as timely filed (See reply DE 47) (sk, Deputy Clerk) (Entered: 08/06/1998)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 13 of 32

08/03/1998
08/03/1998 08/03/1998 08/03/1998 08/06/1998 08/06/1998 08/06/1998 08/06/1998 08/06/1998
08/06/1998
08/07/1998 08/19/1998 08/25/1998 08/25/1998 08/26/1998 08/27/1998 08/31/1998 09/08/1998

49 MOTION with memorandum in support by All Defendants to extend time to serve responses to the US motion to intervene as of right , and for leave to file to participate as amicus curiae, and to plaintiffs' motion for class certification (wj, Deputy Clerk) (Entered: 08/06/1998)
50 NOTICE of filing unreported memorandum opinion which was inadvertantly omitted from deft. reply memorandum of law to pltf. response to motoin to dismiss (attached) by All Defendants (wj, Deputy Clerk) (Entered: 08/06/1998)
51 RESPONSE by All Plaintiffs to [20−1] motion for protective order (sk, Deputy Clerk) (Entered: 08/06/1998)
52 Notice of filing declarations/ AFFIDAVIT by All Plaintiffs Re: [51−1] motion response to [20−1] motion for protective order (sk, Deputy Clerk) (Entered: 08/06/1998)
53 ORDER granting [38−1] motion for leave to file memorandum in excess of 20 pages ( signed by Judge Wilkie D. Ferguson Jr. on 8/5/98) CCAP (lh, Deputy Clerk) (Entered: 08/10/1998)
54 ORDER granting [34−1] motion for leave to file response memorandum in excess of twenty pages nun pro tunc ( signed by Judge Wilkie D. Ferguson Jr. on 8/5/98) CCAP (lh, Deputy Clerk) (Entered: 08/10/1998)
55 ORDER granting [40−1] motion to extend time to file class certification motion nunc pro tunc ( signed by Judge Wilkie D. Ferguson Jr. on 8/5/98) CCAP (lh, Deputy Clerk) (Entered: 08/10/1998)
56 ORDER granting [48−1] motion for leave to file /accept reply as timely filed ( signed by Judge Wilkie D. Ferguson Jr. on 8/5/98) CCAP (lh, Deputy Clerk) (Entered: 08/10/1998)
57 ORDER granting [49−1] motion to extend time to serve responses to the US motion to intervene as of right granting [49−2] motion for leave to file to participate as amicus curiae, and to plaintiffs' motion for class certification ( signed by Judge Wilkie D. Ferguson Jr. on 8/5/98) CCAP (lh, Deputy Clerk) (Entered: 08/10/1998)
59 ORDER granting plaintiffs motion for an enlargement of time to file response memoranda opposing defendants' motion to dismiss, motions to a protective order and for an order to show cause ( signed by Judge Wilkie D. Ferguson Jr. on 8/5/98) CCAP (dp, Deputy Clerk) (Entered: 08/11/1998)
58 AMENDMENT by All Plaintiffs to: [51−1] motion response (lh, Deputy Clerk) (Entered: 08/10/1998)
61 MOTION by Robert Morin, Michael Murphy, Tracy Clemmons, Michael Mayfield to extend time to reply to amended response to motion for protective order (dp, Deputy Clerk) (Entered: 08/24/1998)
62 MOTION by All Defendants to file memorandum in excess of 20 pages in respnose to motion for class certification (dp, Deputy Clerk) (Entered: 08/26/1998)
63 RESPONSE by All Defendants to [42−1] motion for class certification (dp, Deputy Clerk) (Entered: 08/26/1998)
64 MOTION by All Defendants to extend time to serve response to USA's motion to intervenet and for leave to participate as amicus curiae (dp, Deputy Clerk) (Entered: 08/27/1998)
65 REPLY by All Defendants to amended response to [20−1] motion for protective order (dp, Deputy Clerk) (Entered: 08/31/1998)
66 RESPONSE by All Defendants to [37−1] motion to intervene in the first of two motions to dismiss the complaint by United States, [37−2] motion for leave to participate as amicus curiae (dp, Deputy Clerk) (Entered: 09/01/1998)
67 REPLY by United States to response to [37−1] motion to intervene in the first of two motions to dismiss the complaint by United States, [37−2] motion for leave to participate as amicus curiae (dp, Deputy Clerk) (Entered: 09/10/1998)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 14 of 32

09/17/1998 09/17/1998 09/22/1998 09/22/1998 09/22/1998 09/28/1998 09/28/1998 09/28/1998 10/02/1998 10/02/1998 10/07/1998 10/07/1998 10/07/1998 10/15/1998
10/20/1998
10/27/1998 10/28/1998
10/28/1998

68 MOTION by All Defendants for clarification of powers and duties of guardian ad litem (dp, Deputy Clerk) (Entered: 09/18/1998)
69 NOTICE of filing original affidavit of Robert Morin by All Defendants (dp, Deputy Clerk) (Entered: 09/18/1998)
70 ORDER granting [61−1] motion to extend time to reply to amended response to motion for protective order ( signed by Judge Wilkie D. Ferguson Jr. on 9/22/98) CCAP (dp, Deputy Clerk) (Entered: 09/23/1998)
71 ORDER granting [62−1] motion to file memorandum in excess of 20 pages in respnose to motion for class certification ( signed by Judge Wilkie D. Ferguson Jr. on 9/22/98) CCAP (dp, Deputy Clerk) (Entered: 09/23/1998)
72 ORDER granting [64−1] motion to extend time to serve response to USA's motion to intervenet and for leave to participate as amicus curiae ( signed by Judge Wilkie D. Ferguson Jr. on 9/22/98) CCAP (dp, Deputy Clerk) (Entered: 09/23/1998)
73 REPLY by All Plaintiffs to response to [42−1] motion for class certification (dp, Deputy Clerk) (Entered: 09/29/1998)
74 RESPONSE by Susan Stefian, guardian ad litem for Lynda Faye Johnson to [68−1] motion for clarification of powers and duties of guardian ad litem (dp, Deputy Clerk) (Entered: 09/29/1998)
75 AFFIDAVIT by Susan Stefan Re: position with regards to Linda Faye Johnson (dp, Deputy Clerk) (Entered: 09/29/1998)
76 RESPONSE by All Plaintiffs to [68−1] motion for clarification of powers and duties of guardian ad litem (dp, Deputy Clerk) (Entered: 10/06/1998)
77 MOTION by All Plaintiffs for oral argument on motion for clarification and for expedited decision (dp, Deputy Clerk) (Entered: 10/06/1998)
78 MOTION by All Plaintiffs for leave to file surreply in response to reply to plaintiffs amended response to motion for protective order (dp, Deputy Clerk) (Entered: 10/08/1998)
79 REPLY by All Plaintiffs to response to [20−1] motion for protective order (dp, Deputy Clerk) (Entered: 10/08/1998)
80 NOTICE of filing documents in support of surreply by All Plaintiffs (dp, Deputy Clerk) (Entered: 10/08/1998)
81 ORDER denying [46−1] motion for reconsideration of [43−1] order appointing guardian ad litem, granting [37−1] motion to intervene in the first of two motions to dismiss the complaint by United States, denying [37−2] motion for leave to participate as amicus curiae, denying [20−1] motion for protective order ( signed by Judge Wilkie D. Ferguson Jr. on 10/15/98) CCAP (dp, Deputy Clerk) (Entered: 10/19/1998)
82 ORDER granting [77−1] motion for oral argument on motion for clarification and for expedited decision Motion hearing before Judge Wilkie D. Ferguson Jr. set for 9:30 11/4/98 for [68−1] motion for clarification of powers and duties of guardian ad litem ( signed by Judge Wilkie D. Ferguson Jr. on 10/21/98) CCAP (dp, Deputy Clerk) (Entered: 10/23/1998)
83 ORDER consolidating cases 98−673−Civ−Ferguson, 98−1066−Civ−Ferguson and 98−6496−Civ−Ferguson for discovery purposes (signed by Judge Wilkie D. Ferguson Jr. on 10/26/98) CCAP (cp, Deputy Clerk) (Entered: 11/02/1998)
84 NOTICE OF STATUS CONFERENCE set for 4:15 12/28/98; Status report due by 12/16/98 before Judge Wilkie D. Ferguson Jr. (Signed by Judge Wilkie D. Ferguson Jr. on 10/28/98) CCAP (cp, Deputy Clerk) Modified on 11/02/1998 (Entered: 11/02/1998)
85 PRETRIAL ORDER filed (signed by Judge Wilkie D. Ferguson Jr. on 10/28/98) CCAP (cp, Deputy Clerk) (Entered: 11/02/1998)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 15 of 32

10/28/1998 11/04/1998 11/12/1998 11/18/1998
11/19/1998 11/19/1998
11/19/1998
11/19/1998
11/23/1998 11/23/1998
12/04/1998
12/22/1998 12/22/1998 12/22/1998 12/22/1998 12/22/1998 12/22/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998

86 REPLY by All Plaintiffs to response to [42−1] motion for class certification (cp, Deputy Clerk) (Entered: 11/02/1998)
Motion hearing re: [68−1] motion for clarification of powers and duties of guardian ad litem Motion hearing held (dp, Deputy Clerk) (Entered: 11/20/1998)
88 NOTICE of unavailability from 12/21−27/98 &12/29−1/5/99 by Tamara Allen (dp, Deputy Clerk) (Entered: 11/13/1998)
89 Minutes of hearing on motion for clarification held before Judge Wilkie D. Ferguson Jr. on 11/4/98; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 11/20/1998)
90 SUPPLEMEMNTAL MEMORANDUM of law by All Plaintiffs (dp, Deputy Clerk) (Entered: 11/20/1998)
91 ORDER granting [68−1] motion for clarification of powers and duties of guardian ad litem ( signed by Judge Wilkie D. Ferguson Jr. on 11/19/98) CCAP (dp, Deputy Clerk) (Entered: 11/23/1998)
94 ORDER set status conference for 3:00 12/18/98 before Judge Wilkie D. Ferguson Jr. ( signed by Judge Wilkie D. Ferguson Jr. on 11/19/98) CCAP (dp, Deputy Clerk) (Entered: 11/24/1998)
95 ORDER consolidating cases for purposes of discovery only ( signed by Judge Wilkie D. Ferguson Jr. on 11/19/98) CCAP (dp, Deputy Clerk) (Entered: 11/24/1998)
92 NOTICE of filing exhibits in support of motion for preliminary injunction by Wolf Steinman−Ptrado etal (dp, Deputy Clerk) (Entered: 11/24/1998)
93 SUPPLEMENTAL MEMORANDUM in support of motion for preliminary injunction and in opposition to motion to dismiss by Shelyndra Brown etal (dp, Deputy Clerk) (Entered: 11/24/1998)
96 AMENDED ORDER reset status conference for 3:00 1/22/99 before Judge Wilkie D. Ferguson Jr. ( signed by Judge Wilkie D. Ferguson Jr. on 12/4/98) CCAP (dp, Deputy Clerk) (Entered: 12/14/1998)
97 NOTICE to take deposition of David Raymond 2/8/99 at 10:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
98 NOTICE to take deposition of James Freyvogel 2/10/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
99 NOTICE to take deposition of K. Joseph Krieger 2/10/99 at 4:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
100 NOTICE to take deposition of Cary Dashiff etal 2/8/99 at 2:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
101 NOTICE to take deposition of Charles Kimber 2/11/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
102 NOTICE to take deposition of Clark Brownell 2/12/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
103 NOTICE by All Plaintiffs to take deposition of Cary Dashiff etal 2/8/99 at 2:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
104 AMENDED NOTICE by All Plaintiffs to take deposition of James Freyvogel 2/10/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
105 AMENDED NOTICE by All Plaintiffs to take deposition of David Raymond 2/8/99 at 10:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
106 AMENDED NOTICE by All Plaintiffs to take deposition of Charles Kimber 2/11/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
107 AMENDED NOTICE by All Plaintiffs to take deposition of Clark Brownell 2/12/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/28/1998)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 16 of 32

12/28/1998 01/14/1999 01/19/1999 01/25/1999 01/28/1999 01/28/1999 01/28/1999
01/28/1999 01/28/1999
01/28/1999 02/04/1999 02/17/1999 02/24/1999 02/25/1999 03/03/1999 03/09/1999 03/10/1999 03/22/1999 03/25/1999 03/26/1999

108 AMENDED NOTICE by All Plaintiffs to take deposition of Joseph Krieger etal 2/10/99 at 4:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
109 MOTION by All Defendants for reconsideration of [83−2] order (dp, Deputy Clerk) (Entered: 01/14/1999)
110 MOTION by Advocacy Center for protective order and authority therefore (dp, Deputy Clerk) (Entered: 01/22/1999)
111 ORDER granting [28−1] motion for Andrew Meyers to appear pro hac vice ( signed by Judge Wilkie D. Ferguson Jr. on 1/22/99) CCAP (dp, Deputy Clerk) (Entered: 01/27/1999)
112 Scheduling Report of Scheduling Meeting by All Defendants, All Plaintiffs (dp, Deputy Clerk) (Entered: 01/29/1999)
113 JOINT STATUS REPORT by All Defendants, All Plaintiffs (dp, Deputy Clerk) (Entered: 01/29/1999)
114 ORDER dismissing [78−1] motion for leave to file surreply in response to reply to plaintiffs amended response to motion for protective order ( signed by Judge Wilkie D. Ferguson Jr. on 1/26/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
115 ORDER granting [28−1] motion for Andrew Meyers to appear pro hac vice ( signed by Judge Wilkie D. Ferguson Jr. on 1/26/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
116 ORDER granting [21−1] motion for leave to file legal memorandum in support of defendants' motion to dismiss in excess of twenty pages in length ( signed by Judge Wilkie D. Ferguson Jr. on 1/26/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
117 ORDER Motion hearing before Judge Wilkie D. Ferguson Jr. set for 10:00 2/19/99 for [42−1] motion for class certification ( signed by Judge Wilkie D. Ferguson Jr. on 1/17/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 10070467 pro hac vice for attorney Andrew J. Meyers. (Former Deputy Clerk) Modified on 02/08/1999 (Entered: 02/08/1999)
118 ORDER granting [109−1] motion for reconsideration of [83−2] order and deconsolidating this matter for discovery purposes ( signed by Judge Wilkie D. Ferguson Jr. on 2/16/99) CCAP (dp, Deputy Clerk) (Entered: 02/22/1999)
119 NOTICE of filing supplemental authority by All Defendants (dp, Deputy Clerk) (Entered: 02/25/1999)
120 NOTICE of unavailability from 3/29/99 to 4/2/99 by All Defendants (dp, Deputy Clerk) (Entered: 02/26/1999)
121 MOTION by All Defendants for leave to file proposed order on class certification (dp, Deputy Clerk) (Entered: 03/04/1999)
122 Minutes of motions for class certificatio held before Judge Wilkie D. Ferguson Jr. on 2/19/99; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 03/11/1999)
123 ORDER granting [42−1] motion for class certification ( signed by Judge Wilkie D. Ferguson Jr. on 3/10/99) CCAP (dp, Deputy Clerk) (Entered: 03/11/1999)
124 MOTION by All Defendants to extend time to file objections to order certifying class (dp, Deputy Clerk) (Entered: 03/23/1999)
126 RESPONSE by All Defendants in opposition to plaintiffs' proposed order certifying class (dp, Deputy Clerk) (Entered: 03/30/1999)
125 SECOND MOTION by All Defendants to extend time to file objections to order certifying class (dp, Deputy Clerk) (Entered: 03/29/1999)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 17 of 32

03/30/1999
03/30/1999 03/30/1999
03/31/1999 03/31/1999 03/31/1999 03/31/1999 03/31/1999 04/21/1999 04/23/1999 05/06/1999 06/08/1999 06/14/1999 06/21/1999 06/23/1999 06/30/1999 07/01/1999 07/14/1999 07/15/1999

127 ORDER Granting [125−1] second motion to extend time to file objections to order certifying class; defendants have until 3/26/99 to file objections (signed by Judge Wilkie D. Ferguson Jr. on 3/26/99) CCAP (ss, Deputy Clerk) (Entered: 04/01/1999)
128 ORDER Mooting [124−1] motion to extend time to file objections to order certifying class (signed by Judge Wilkie D. Ferguson Jr. on 3/26/99) CCAP (ss, Deputy Clerk) (Entered: 04/01/1999)
129 ORDER Granting [121−1] motion for leave to file proposed order on class certification; Peter Nimkoff, Ellen Saideman and Juliette Lippman is Appointed Counsel for the class (signed by Judge Wilkie D. Ferguson Jr. on 3/29/99) CCAP (ss, Deputy Clerk) (Entered: 04/01/1999)
130 ORDER dismissing [19−1] motion for entry of Order to Show Cause ( signed by Judge Wilkie D. Ferguson Jr. on 3/31/99) CCAP (dp, Deputy Clerk) (Entered: 04/02/1999)
131 ORDER denying [22−1] motion to dismiss the Plaintiff's complaint, denying [22−2] motion for more definite statement ( signed by Judge Wilkie D. Ferguson Jr. on 3/31/99) CCAP (dp, Deputy Clerk) (Entered: 04/02/1999)
132 ORDER denying [18−1] motion to dismiss complaint, denying [18−2] motion to strike certain portions of plaintiff's complaint ( signed by Judge Wilkie D. Ferguson Jr. on 3/31/99) CCAP (dp, Deputy Clerk) (Entered: 04/02/1999)
133 ORDER dismissing [121−1] motion for leave to file proposed order on class certification ( signed by Judge Wilkie D. Ferguson Jr. on 3/31/99) CCAP (dp, Deputy Clerk) (Entered: 04/02/1999)
134 ORDER dismissing [110−1] motion for protective order and authority therefore ( signed by Judge Wilkie D. Ferguson Jr. on 3/31/99) CCAP (dp, Deputy Clerk) (Entered: 04/02/1999)
135 Answer and affirmative defenses by Tamara Allen (dp, Deputy Clerk) (Entered: 04/22/1999)
136 MEMORANDUM by All Plaintiffs in support of their objections to Defendants' demands for documents (dp, Deputy Clerk) (Entered: 04/23/1999)
137 MOTION by All Defendants to strike [136−1] support memorandum (dp, Deputy Clerk) (Entered: 05/07/1999)
140 NOTICE OF INTERLOCUTORY APPEAL by All Plaintiffs of [129−1] order . EOD Date: 4/1/99; Filing Fee: $ 105.00; Receipt #: 516559; Copies to USCA and Counsel of Record. (Former Deputy Clerk) (Entered: 06/23/1999)
138 MOTION by All Defendants to extend time to respond to interrogatories (dp, Deputy Clerk) (Entered: 06/15/1999)
139 Answer and affirmative defenses by All Defendants (dp, Deputy Clerk) (Entered: 06/23/1999)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [140−1] appeal by All Plaintiffs as to All Plaintiffs (Former Deputy Clerk) (Entered: 06/23/1999)
NOTICE of Receipt of Transmittal Letter from USCA as to All Plaintiffs Re: [140−1] appeal by All Plaintiffs USCA NUMBER: 99−11544−J (Former Deputy Clerk) (Entered: 07/01/1999)
141 MOTION by All Defendants to extend time to file , and for leave to file objections to first interrogatories (dp, Deputy Clerk) (Entered: 07/02/1999)
143 Certification re conferring with counsel regarding second motion for extension of time and for leave to file further objections: by All Defendants (dp, Deputy Clerk) (Entered: 07/16/1999)
142 MOTION by Tamara Allen to substitute Stephanie Daniel as Attorney (dp, Deputy Clerk) (Entered: 07/16/1999)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 18 of 32

07/16/1999 07/27/1999 07/27/1999
07/27/1999 07/27/1999
08/02/1999 08/06/1999 08/23/1999 09/16/1999 09/27/1999 10/05/1999 10/05/1999 01/28/2000
01/28/2000
01/31/2000
01/31/2000
02/02/2000

144 Appeal Information Sheet re: [140−1] appeal by All Plaintiffs . No transcript requested. (Former Deputy Clerk) (Entered: 07/22/1999)
145 ORDER granting [138−1] motion to extend time to respond to interrogatories ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/29/99] (dp, Deputy Clerk) (Entered: 07/29/1999)
146 ORDER granting [142−1] motion to substitute Stephanie Daniel as Attorney (Terminated: attorney JC Miller for Tamara Allen, attorney Andrew Jeffrey Meyers for Tamara Allen Added: Stephanie A. Daniel) ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/29/99] (dp, Deputy Clerk) (Entered: 07/29/1999)
147 ORDER denying [137−1] motion to strike [136−1] support memorandum ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/29/99] (dp, Deputy Clerk) (Entered: 07/29/1999)
148 ORDER granting [141−1] motion to extend time to file, granting [141−2] motion for leave to file objections to first interrogatories ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/29/99] (dp, Deputy Clerk) (Entered: 07/29/1999)
149 NOTICE of filing transcript of 2/19/99 hearing on motion for class certification by All Defendants (dp, Deputy Clerk) (Entered: 08/03/1999)
Certificate of readiness as to All Plaintiffs transmitted to USCA Re: [140−1] appeal by All Plaintiffs USCA NUMBER: 99−11544−J (Former Deputy Clerk) (Entered: 08/06/1999)
ACKNOWLEDGMENT of receipt by U.S.C.A. of: COR on 8/16/99 U.S.C.A. # 99−11544−J (Former Deputy Clerk) (Entered: 08/27/1999)
150 MOTION by All Defendants to extend time to serve responses to second set of interrogatories to Kathleen Kearney and Ruben King−Shaw (dp, Deputy Clerk) (Entered: 09/16/1999)
Transmitted record on appeal as to All Plaintiffs to U.S. Court of Appeals: [140−1] appeal by All Plaintiffs (Former Deputy Clerk) (Entered: 09/27/1999)
NOTICE of Receipt of Transmittal Letter from USCA as to Shelyndra Brown Re: USCA NUMBER: (Former Deputy Clerk) (Entered: 10/06/1999)
NOTICE of Receipt of Transmittal Letter from USCA as to Shelyndra Brown Re: [140−1] appeal by All Plaintiffs USCA NUMBER: 99−11544−J (Former Deputy Clerk) (Entered: 10/06/1999)
151 EMERGENCY MOTION with memorandum in support by All Plaintiffs to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents (dp, Deputy Clerk) (Entered: 01/31/2000)
152 MOTION by All Plaintiffs for oral argument on [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents (dp, Deputy Clerk) (Entered: 01/31/2000)
153 RESPONSE by All Defendants to [152−1] motion for oral argument on [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents (dp, Deputy Clerk) (Entered: 02/01/2000)
154 RESPONSE by All Defendants to [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents (dp, Deputy Clerk) (Entered: 02/01/2000)
155 REPLY by All Plaintiffs to response to [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 19 of 32

02/08/2000 02/10/2000 02/10/2000 02/10/2000 02/11/2000
02/11/2000
02/24/2000 03/03/2000 03/03/2000 03/03/2000 03/17/2000 04/20/2000
05/10/2000 05/11/2000 05/11/2000 09/30/2000
09/30/2000

period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents (dp, Deputy Clerk) (Entered: 02/03/2000)
156 Minutes of hearing on emergency motion held before Judge Wilkie D. Ferguson Jr. on 2/8/00; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 02/09/2000)
157 MOTION by All Defendants for judicial notice (dp, Deputy Clerk) (Entered: 02/10/2000)
158 NOTICE of filing 11th Circuit opinion on opposition to emergency motion by plaintiffs by All Defendants (dp, Deputy Clerk) (Entered: 02/10/2000)
159 NOTICE of filing declaration of Tracy Clemmons by All Defendants (dp, Deputy Clerk) (Entered: 02/10/2000)
160 ORDER denying [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents ( Signed by Judge Wilkie D. Ferguson Jr. on 2/11/00) CCAP [EOD Date: 2/14/00] (dp, Deputy Clerk) (Entered: 02/14/2000)
161 REVISED ORDER on motion to certify class. This court concludes that the Advocacy Center has no independent standing and is therefore stricken as a class plaintiff ( Signed by Judge Wilkie D. Ferguson Jr. on 2/11/00) CCAP [EOD Date: 2/14/00] (dp, Deputy Clerk) (Entered: 02/14/2000)
162 RESPONSE by All Defendants in opposition to [161−1] order (dp, Deputy Clerk) (Entered: 02/25/2000)
163 NOTICE of filing documents in support of motion for voluntary withdrawal by Shelyndra Brown (dp, Deputy Clerk) (Entered: 03/06/2000)
164 MOTION by Shelyndra Brown to voluntarily withdraw as a plaintiff (dp, Deputy Clerk) (Entered: 03/06/2000)
165 MOTION by Shelyndra Brown for oral argument on [164−1] motion to voluntarily withdraw as a plaintiff (dp, Deputy Clerk) (Entered: 03/06/2000)
166 RESPONSE by All Defendants to [164−1] motion to voluntarily withdraw as a plaintiff and CROSS−MOTION, to strike Shelyndra Brown as a plaintiff (dp, Deputy Clerk) (Entered: 03/20/2000)
167 MANDATE OF USCA (certified copy) [140−1] appeal district court's order reversed, vacated and remanded to district court for further proceedings in accordance with the opinion of the USCA Mandate Issued Date: 4/18/00; USCA Appeal #: 99−11544−JJ; Copy to Judge. (Former Deputy Clerk) (Entered: 05/01/2000)
168 ORDER granting [164−1] motion to voluntarily withdraw as a plaintiff ( Signed by Judge Wilkie D. Ferguson Jr. on 5/9/00) CCAP [EOD Date: 5/10/00] (dp, Deputy Clerk) (Entered: 05/10/2000)
169 NOTICE of Unavailability from 6/2−6/9 by Stephanie Danieal Assistant Attorney General (dp, Deputy Clerk) (Entered: 05/12/2000)
170 NOTICE of Unavailability from 8/29 to 11/29 by Stephanie Daniel Assistant Attorney General (dp, Deputy Clerk) (Entered: 05/12/2000)
174 (FOR ADMINISTRATIVE PURPOSES ONLY) ORDER granting [150−1] motion to extend time to serve responses to second set of interrogatories to Kathleen Kearney and Ruben King−Shaw ( Signed by Judge Wilkie D. Ferguson Jr. on 9/30/00 now for 9/28/99) CCAP [EOD Date: 10/11/00] (dp, Deputy Clerk) Modified on 10/11/2000 (Entered: 10/11/2000)
175 (FOR ADMINISTRATIVE PURPOSES ONLY) ORDER granting [157−1] motion for judicial notice ( Signed by Judge Wilkie D. Ferguson Jr. on 9/30/00) CCAP [EOD Date: 10/11/00] (dp, Deputy Clerk) Modified on 10/11/2000 (Entered: 10/11/2000)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 20 of 32

09/30/2000
10/03/2000
10/05/2000 10/05/2000
02/09/2001 02/09/2001 04/20/2001 03/05/2002 03/13/2002 03/14/2002 05/06/2002 05/06/2002 10/01/2002
10/17/2002 10/18/2002 11/08/2002 11/14/2002

176 (FOR ADMINISTRATIVE PURPOSES ONLY) ORDER dismissing [152−1] motion for oral argument on [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents ( Signed by Judge Wilkie D. Ferguson Jr. on 9/30/00) CCAP [EOD Date: 10/11/00] (dp, Deputy Clerk) Modified on 10/11/2000 (Entered: 10/11/2000)
171 ORDER granting [150−1] motion to extend time to serve responses to second set of interrogatories to Kathleen Kearney and Ruben King−Shaw ( Signed by Judge Wilkie D. Ferguson Jr. on 10/3/00 now for 9/28/99) CCAP [EOD Date: 10/12/00] (dp, Deputy Clerk) (Entered: 10/12/2000)
172 ORDER granting [157−1] motion for judicial notice ( Signed by Judge Wilkie D. Ferguson Jr. on 10/5/00) CCAP [EOD Date: 10/12/00] (dp, Deputy Clerk) (Entered: 10/12/2000)
173 ORDER dismissing [152−1] motion for oral argument on [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents ( Signed by Judge Wilkie D. Ferguson Jr. on 10/5/00) CCAP [EOD Date: 10/12/00] (dp, Deputy Clerk) (Entered: 10/12/2000)
177 ORDER dismissing [166−1] response to strike Shelyndra Brown as a plaintiff, dismissing [166−2] motion ( Signed by Judge Wilkie D. Ferguson Jr. on 2/8/01) CCAP [EOD Date: 2/12/01] (dp, Deputy Clerk) (Entered: 02/12/2001)
178 ORDER dismissing [165−1] motion for oral argument on [164−1] motion to voluntarily withdraw as a plaintiff ( Signed by Judge Wilkie D. Ferguson Jr. on 2/8/01) CCAP [EOD Date: 2/12/01] (dp, Deputy Clerk) (Entered: 02/12/2001)
179 NOTICE OF FILING SUPPLEMENTAL AUTHORITY by All Defendants relating to defendants' third affirmative defens (dp, Deputy Clerk) (Entered: 04/23/2001)
Record on appeal as to All Plaintiffs returned from U.S. Court of Appeals: [140−1] appeal by All Plaintiffs USCA #: 99−11544−JJ (Former Deputy Clerk) (Entered: 03/07/2002)
180 NOTICE of substitution of lead counsel and change of address by Advocacy Center (dp, Deputy Clerk) (Entered: 03/14/2002)
181 NOTICE of Unavailability by All Plaintiffs for dates of: 3/19−3/29 (dp, Deputy Clerk) (Entered: 03/15/2002)
182 NOTICE of Unavailability by All Defendants for dates of: 8/10−8/23 (dp, Deputy Clerk) (Entered: 05/07/2002)
183 NOTICE of Unavailability by All Defendants for dates of: 6/21/02 (dp, Deputy Clerk) (Entered: 05/07/2002)
184 ORDER SETTING STATUS CONFERENCE Status conference set for 4:15 11/25/02 before Judge Wilkie D. Ferguson Jr. ( Signed by Judge Wilkie D. Ferguson Jr. on 10/1/02) [EOD Date: 10/2/02] CCAP (dp, Deputy Clerk) (Entered: 10/02/2002)
185 NOTICE of attorney appearance for Advocacy Center by Isaias Ortiz (dp, Deputy Clerk) (Entered: 10/18/2002)
186 NOTICE of attorney appearance for All Plaintiffs, Advocacy Center, Kerry Mangham, Lynda Faye Johnson, Mervyn Morell, Henry Sims, Ronald Adside by Isaias Ortiz (dp, Deputy Clerk) (Entered: 10/21/2002)
187 MOTION by Advocacy Center for telephonic status conference (dp, Deputy Clerk) (Entered: 11/12/2002)
188 MOTION by All Defendants to extend time to file joint status report (dp, Deputy Clerk) (Entered: 11/15/2002)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 21 of 32

11/15/2002 11/20/2002 12/02/2002 12/02/2002 12/02/2002 12/02/2002
12/02/2002 04/25/2003 04/25/2003 05/15/2003 05/15/2003 05/19/2003 05/19/2003 05/19/2003 05/20/2003 05/21/2003 05/22/2003 05/22/2003 05/22/2003 05/22/2003

189 JOINT STATUS REPORT by All Defendants, All Plaintiffs (dp, Deputy Clerk) (Entered: 11/18/2002)
190 ORDER granting [187−1] motion for telephonic status conference ( Signed by Judge Wilkie D. Ferguson Jr. on 11/21/02) [EOD Date: 11/22/02] (dp, Deputy Clerk) (Entered: 11/22/2002)
191 Minutes of status conference held before Judge Wilkie D. Ferguson Jr. on 11/25/02; Court Reporter Name or Tape #: Carleen Horenkamp (lh, Deputy Clerk) (Entered: 12/03/2002)
192 ORDER granting [188−1] motion to extend time to file joint status report ( Signed by Judge Wilkie D. Ferguson Jr. on 11/29/02) [EOD Date: 12/3/02] (lh, Deputy Clerk) (Entered: 12/03/2002)
193 ORDER referring case to mediation. 15 days to appoint mediator ( Signed by Judge Wilkie D. Ferguson Jr. on 11/27/02) [EOD Date: 12/3/02] (lh, Deputy Clerk) (Entered: 12/03/2002)
194 ORDER setting discovery deadline for 9/15/03 , all pretrial motion filing deadline for 10/6/03 , pretrial stipulation due for 10/20/03 , pretrial conference for 4:15 10/27/03 , calendar call for 4:15 11/24/03 , Jury trial for 12/1/03 ( Signed by Judge Wilkie D. Ferguson Jr. on 11/27/02) [EOD Date: 12/3/02] (lh, Deputy Clerk) (Entered: 12/03/2002)
195 ORDER REFERRING CASE (PRE−TRIAL) to Magistrate Judge Lurana S. Snow ( Signed by Judge Wilkie D. Ferguson Jr. on 11/27/02) CCAP [EOD Date: 12/3/02] (lh, Deputy Clerk) (Entered: 12/03/2002)
196 MOTION with memorandum in support by All Plaintiffs to compel discovery (ss, Deputy Clerk) (Entered: 04/28/2003)
197 Certificate of counsel by All Plaintiffs (ss, Deputy Clerk) (Entered: 04/28/2003)
198 MOTION by All Defendants to extend time to respond to motion to compel (dp, Deputy Clerk) (Entered: 05/16/2003)
Motion(s) referred: [198−1] motion to extend time to respond to motion to compel referred to Magistrate Judge Lurana S. Snow (dp, Deputy Clerk) (Entered: 05/16/2003)
199 NOTICE regarding efforts to confer with counsel regarding motion for leave to file attached response to motion to compel by All Defendants (dp, Deputy Clerk) (Entered: 05/20/2003)
200 NOTICE of filing additional exhibit to response to motion to compel by All Defendants (dp, Deputy Clerk) (Entered: 05/20/2003)
201 MOTION by All Defendants for leave to file attached response to motion to compel which exceeds page limitation (dp, Deputy Clerk) (Entered: 05/20/2003)
202 ORDER granting [198−1] motion to extend time to respond to motion to compel ( Signed by Magistrate Judge Lurana S. Snow on 5/20/03) [EOD Date: 5/21/03] (dp, Deputy Clerk) (Entered: 05/21/2003)
203 NOTICE of efforts to confer with counsel re motion for leave to file response to motion to compel by All Defendants (dp, Deputy Clerk) (Entered: 05/22/2003)
204 ORDER transferring case to the calendar of Judge James L. King pursuant to Administrative Order # 2003−37 ( Signed by Judge William J. Zloch on 05/22/03) [EOD Date: 5/23/03] (mg, Deputy Clerk) (Entered: 05/23/2003)
CASE reassigned to Judge James Lawrence King (mg, Deputy Clerk) (Entered: 05/23/2003)
205 MOTION by All Plaintiffs to extend time to reply to defendant's response to motion to compel (dp, Deputy Clerk) (Entered: 05/23/2003)
Motion(s) referred: [205−1] motion to extend time to reply to defendant's response to motion to compel referred to Magistrate Judge Lurana S. Snow (dp, Deputy

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 22 of 32

05/23/2003
05/23/2003 05/28/2003
05/29/2003 05/29/2003 06/04/2003
06/18/2003 06/18/2003 06/18/2003 06/18/2003 06/18/2003 07/07/2003
07/07/2003 07/18/2003
07/25/2003 08/01/2003

Clerk) (Entered: 05/23/2003)
206 ORDER Denying without prejudice [196−1] motion to compel discovery; Denying as moot [201−1] motion for leave to file attached response to to compel which exceeds page limitation (Signed by Magistrate Judge Lurana S. Snow on 5/23/03) [EOD Date: 5/28/03] (ss, Deputy Clerk) (Entered: 05/28/2003)
208 ORDER granting [205−1] motion to extend time to reply to defendant's response to motion to compel until 6/6/03 (Signed by Magistrate Judge Lurana S. Snow on 5/23/03) [EOD Date: 5/30/03] (gp, Deputy Clerk) (Entered: 05/30/2003)
207 ORDER SETTING FINAL PRE−TRIAL CONREFENCE AND TRIAL DATE Setting pretrial conference for 10:30 1/16/04 before Judge James Lawrence King , Setting pretrial stipulation due for 1/9/04 ( Signed by Judge James Lawrence King on 5/27/03) [EOD Date: 5/29/03] (gp, Deputy Clerk) (Entered: 05/29/2003)
209 MOTION by All Defendants for Thomas B. York to appear pro hac vice (gp, Deputy Clerk) (Entered: 06/03/2003)
Filing Fee for Motion to Appear Pro Hac Vice Paid; FILING FEE $ 75.00 RECEIPT # 883398 (gp, Deputy Clerk) (Entered: 06/03/2003)
210 AMENDED ORDER amending [208−1] order and denying [205−1] motion to extend time to reply to defendant's response to motion to compel ( Signed by Magistrate Judge Lurana S. Snow on 6/4/03) [EOD Date: 6/5/03] (dp, Deputy Clerk) (Entered: 06/05/2003)
211 ORDER denying without prejudice [209−1] motion for Thomas B. York to appear pro hac vice ( Signed by Magistrate Judge Lurana S. Snow on 6/18/03) [EOD Date: 6/19/03] (dp, Deputy Clerk) (Entered: 06/19/2003)
212 ORDER OF CERTIFICATION AND TRANSFER TO NEW MAGISTRATE JUDGE John J. O'Sullivan ( Signed by Magistrate Judge Lurana S. Snow on 6/18/03) [EOD Date: 6/19/03] (dp, Deputy Clerk) (Entered: 06/19/2003)
Magistrate identification: Magistrate Judge John J. O'Sullivan (dp, Deputy Clerk) (Entered: 06/19/2003)
213 ORDER granting [209−1] motion for Thomas B. York to appear pro hac vice ( Signed by Judge James Lawrence King on 6/18/03) [EOD Date: 6/19/03] (gp, Deputy Clerk) (Entered: 06/19/2003)
214 NOTICE of Unavailability by Shelyndra Brown for dates of: 7/14/03 through 7/23/03 (gp, Deputy Clerk) (Entered: 06/19/2003)
215 ORDER OF RECUSAL In accordance with the Local Rules for the Southern District of Florida, providing for the random and equal allotment of cases this cause is hereby reassigned to the calendar of Judge Jose E. Martinez (Signed by Judge James Lawrence King on 7/1/03) [EOD Date: 7/8/03] (gp, Deputy Clerk) (Entered: 07/08/2003)
CASE Reassigned to Judge Jose E. Martinez (gp, Deputy Clerk) (Entered: 07/08/2003)
216 ORDER SETTING CIVIL TRIAL DATE AND PRETRIAL SCHEDULE AND REQUIRING MEDIATION Set Jury trial for 1/26/04 before Judge Jose E. Martinez , Set calendar call for 1:30 1/22/04 before Judge Jose E. Martinez ( Signed by Judge Jose E. Martinez on 07/17/03) [EOD Date: 7/21/03] (ra, Deputy Clerk) (Entered: 07/21/2003)
217 MOTION with memorandum in support by All Plaintiffs for protective order re: use of confidential information during litigation of this matter (hd, Deputy Clerk) (Entered: 07/29/2003)
218 PROTECTIVE ORDER granting [217−1] motion for protective order re: use of confidential information during litigation of this matter (Signed by Judge Jose E. Martinez on 07/29/03) [EOD Date: 8/4/03] (ra, Deputy Clerk) (Entered: 08/04/2003)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 23 of 32

08/11/2003
08/15/2003 08/15/2003 08/15/2003 08/15/2003 08/19/2003 08/19/2003 08/26/2003 09/02/2003 09/02/2003 09/04/2003
09/04/2003 09/05/2003 09/08/2003 09/08/2003 09/10/2003
09/11/2003 09/11/2003 09/12/2003

219 RESPONSE by Ester Tibbs, United States, All Defendants, All Plaintiffs, Richard T. Lutz, Doug Cook, Frances Gibbons, John Awad, Anita Bock, Robert Morin, Michael Murphy, Tracy Clemmons, Michael Mayfield, Jeb Bush, Jerry Regier, Shelly Brantley, Charles M. Hood, Bob Williams, Ora L. White, Nora S. Brake, Rhonda Medows, Bob Sharpe to plaintiff's fifth request for production of documents (ra, Deputy Clerk) (Entered: 08/12/2003)
220 MOTION by Advocacy Center, Kerry Mangham, Lynda Faye Johnson, Mervyn Morell, Henry Sims, Ronald Adside for Steven J. Schwartz to appear pro hac vice (ra, Deputy Clerk) (Entered: 08/18/2003)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 887658 (ra, Deputy Clerk) (Entered: 08/18/2003)
221 MOTION by Advocacy Center, Kerry Mangham, Lynda Faye Johnson, Mervyn Morell, Henry Sims, Ronald Adside for Robert D. Fleischner to appear pro hac vice (ra, Deputy Clerk) (Entered: 08/18/2003)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 887658 (ra, Deputy Clerk) (Entered: 08/18/2003)
222 MOTION with memorandum in support by All Plaintiffs to amend [216−3] scheduling order (ra, Deputy Clerk) (Entered: 08/20/2003)
223 DECLARATION of Hubert A. Grissom by All Plaintiffs Re: [222−1] motion to amend [216−3] scheduling order (ra, Deputy Clerk) (Entered: 08/20/2003)
224 ORDER granting [220−1] motion for Steven J. Schwartz to appear pro hac vice ( Signed by Judge Jose E. Martinez on 08/26/03) [EOD Date: 8/27/03] (ra, Deputy Clerk) (Entered: 08/27/2003)
225 UNCONTESTED MOTION by All Defendants to amend [216−3] order (tb, Deputy Clerk) (Entered: 09/03/2003)
225 RESPONSE by All Defendants to [222−1] motion to amend [216−3] scheduling order (tb, Deputy Clerk) (Entered: 09/03/2003)
226 NOTICE by All Defendants to take depositions of Ellen M. Saideman, Isaias Ortiz, Hubert A. Grissom, Jr., Marc Dubin, Marcos Daniel Jimenez, Veronica Harrell−James, Steven J. Schwartz and Robert D. Fleischer on 9/10/03 at 9:00 (bs, Deputy Clerk) (Entered: 09/05/2003)
227 ORDER granting [221−1] motion for Robert D. Fleischner to appear pro hac vice ( Signed by Judge Jose E. Martinez on 09/04/03) [EOD Date: 9/5/03] (bs, Deputy Clerk) (Entered: 09/05/2003)
228 UNOPPOSED MOTION by All Plaintiffs to extend time to file a motion to compel to defendants' resposne to plaintiff 5th request for document production (ct, Deputy Clerk) (Entered: 09/08/2003)
229 NOTICE by All Defendants to take deposition of The Advocacy Center 9/11/03 at 9:00 (ct, Deputy Clerk) (Entered: 09/09/2003)
230 AMENDED NOTICE by All Defendants to take deposition of The Advocacy Center 9/11/03 at 9:00 (ct, Deputy Clerk) (Entered: 09/09/2003)
231 ORDER granting [228−1] motion to extend time to file a motion to compel to defendants' resposne to plaintiff 5th request for document production ( Signed by Magistrate Judge Robert L. Dube on 09/10/03) [EOD Date: 9/11/03] (ra, Deputy Clerk) (Entered: 09/11/2003)
232 MOTION by All Plaintiffs to quash subpoena duces tecum of pat W. Wear II (ra, Deputy Clerk) (Entered: 09/12/2003)
232 NOTICE of Rule 30(b)(6) deposition duces tecum of the Advocacy Center for persons with disabilities by All Plaintiffs (ra, Deputy Clerk) (Entered: 09/12/2003)
233 ORDER granting in part [225−1] motion to amend [216−3] order reset scheduling order deadlines: Jury Trial 2/23/04 Calendar Call set for 1:30 2/19/04 mooting [222−1] motion to amend [216−3] scheduling order ( Signed by Judge Jose E.

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 24 of 32

09/15/2003 09/15/2003 09/16/2003 09/16/2003 09/18/2003 09/18/2003 09/18/2003
09/18/2003
09/19/2003 09/19/2003 09/24/2003 10/01/2003 10/08/2003

Martinez on 09/12/03) [EOD Date: 9/15/03] (bb, Deputy Clerk) (Entered: 09/15/2003)
234 AMENDED NOTICE by All Defendants to take deposition duces tecum of Pat Wear 9/18/03 at 9:00a.m. (bb, Deputy Clerk) (Entered: 09/16/2003)
235 AMENDED NOTICE by All Defendants of Rule 30(b)(6) deposition of The Advocacy Center for Persons With Disabilities, Inc. 9/19/03 at 9:00 (ra, Deputy Clerk) Modified on 09/16/2003 (Entered: 09/16/2003)
236 ORDER for expedited response Response to motion to motion for protective order set for 09/16/03 at 4:00 (Signed by Magistrate Judge Robert L. Dube on 09/15/03) [EOD Date: 9/17/03] (ra, Deputy Clerk) (Entered: 09/17/2003)
237 EMERGENCY MOTION with memorandum in support by All Plaintiffs for protective order to stay deposition of Pat Wear II and Rule 30(b)(6) Depsoition of Advocacy Center fo Persons with Disabilities, Inc., pending a ruling on the Plaintiffs' Motion to Quash (gp, Deputy Clerk) (Entered: 09/18/2003)
238 EMERGENCY REQUEST by All Defendants for Ruling on [232−1] motion to quash subpoena duces tecum of pat W. Wear II (ra, Deputy Clerk) Modified on 09/19/2003 (Entered: 09/19/2003)
239 RESPONSE by All Defendants to plaintiffs requests for production of documents attached to notice to take deposition issued on 08/08/03 (ra, Deputy Clerk) (Entered: 09/19/2003)
240 REQUEST by All Defendants for telephonic hearing on [237−1] motion for protective order to stay deposition of Pat Wear II and Rule 30(b)(6) Deposition of Advocacy Center for Persons with Disabilities, Inc., pending a ruling on the Plaintiffs' Motion to Quash, [232−1] notice, [232−1] motion to quash subpoena duces tecum of Pat W. Wear II (bb, Deputy Clerk) Modified on 09/19/2003 (Entered: 09/19/2003)
241 ORDER denying [232−1] motion to quash subpoena duces tecum of Pat W. Wear II, denying [232−1] notice, denying [237−1] motion for protective order to stay deposition of Pat Wear II and Rule 30(b)(6) Deposition of Advocacy Center for Persons with Disabilities, Inc., pending a ruling on the Plaintiffs' Motion to Quash, denying as moot [238−1] Emergency Request for Ruling on [232−1] motion to quash subpoena duces tecum of Pat W. Wear II, denying as moot [240−1] Request for Telephonic Hearing on [237−1] motion for protective order to stay deposition of Pat Wear II and Rule 30(b)(6) Deposition of Advocacy Center for Persons with Disabilities, Inc., pending a ruling on the Plaintiffs' Motion to Quash, [232−1] notice, [232−1] motion to quash subpoena duces tecum of Pat W. Wear II ( Signed by Magistrate Judge Robert L. Dube on 09/17/03) [EOD Date: 9/19/03] (bb, Deputy Clerk) (Entered: 09/19/2003)
242 MOTION by All Plaintiffs to compel production of records pertaining to discharge class members and potential class members (ra, Deputy Clerk) (Entered: 09/22/2003)
243 MEMORANDUM by All Plaintiffs in support of [242−1] motion to compel production of records pertaining to discharge class members and potential class members (ra, Deputy Clerk) (Entered: 09/22/2003)
244 NOTICE of Unavailability by All Defendants for dates of 11/26/03 − 12/02/03 (bb, Deputy Clerk) (Entered: 09/25/2003)
245 NOTICE by All Defendants to take deposition duces tecum of Claude Adside on 10/10/03 at 11:00, Dorothy Adside on 10/10/03 at 4:00, Isidro Morell on 11/5/03 at 9:00, Sylvia Scott on 11/5/03 at 1:00, Eliel Morell on 11/5/03 at 3:00, and Kerry Mangham on 11/4/03 at 9:00 (bb, Deputy Clerk) (Entered: 10/02/2003)
246 RESPONSE by All Defendants in opposition to [242−1] motion to compel production of records pertaining to discharged class members and potential class members (bb, Deputy Clerk) (Entered: 10/09/2003)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 25 of 32

10/08/2003 10/09/2003 10/10/2003 10/14/2003 10/14/2003 10/15/2003 10/17/2003 10/21/2003
10/23/2003 10/24/2003 10/28/2003
10/31/2003 10/31/2003 10/31/2003 11/03/2003

247 MEMORANDUM by All Defendants in opposition to [242−1] motion to compel production of records pertaining to discharged class members and potential class members (bb, Deputy Clerk) (Entered: 10/09/2003)
248 MOTION by All Plaintiffs to compel document production of records requested in Plaintiffs' notices of deposition and subpoenas of 08/08/03 (bb, Deputy Clerk) (Entered: 10/10/2003)
249 NOTICE of cancellation of deposition of Dorothy Adside by All Defendants (bb, Deputy Clerk) (Entered: 10/14/2003)
250 AMENDED NOTICE by All Defendants of taking deposition duces tecum by use of videoconferencing and telephone equipment (bb, Deputy Clerk) (Entered: 10/15/2003)
251 OBJECTIONS by All Plaintiffs to the documents requested in the 30B(6) notices to the Advocacy Center for Persons with Disabilities, Inc. and Pat Wear (bb, Deputy Clerk) (Entered: 10/15/2003)
252 MOTION by All Plaintiffs to extend time to file a reply to defendants' response in opposition to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members (bb, Deputy Clerk) (Entered: 10/16/2003)
253 MOTION by All Plaintiffs for leave to file an Amended and Supplemented Complaint (Proposed Amended and Supplemented Complaint located in Pod 2) (bb, Deputy Clerk) (Entered: 10/20/2003)
254 ORDER granting [252−1] motion to extend time to file a reply to defendants' response in opposition to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members; Reply to Response to Motion reset to 10/23/03 for [242−1] motion to compel production of records pertaining to discharge class members and potential class members (Signed by Magistrate Judge Robert L. Dube on 10/21/03) [EOD Date: 10/22/03] (bb, Deputy Clerk) (Entered: 10/22/2003)
255 REPLY by All Plaintiffs to response to [242−1] motion to compel production of records pertaining to discharge class members and potential class members (bb, Deputy Clerk) (Entered: 10/24/2003)
256 MOTION by All Defendants to extend time to respond to plaintiff's motion to compel document production of records requested in plaintiffs' notice of deposition and subpoenas of 8/8/03 (tb, Deputy Clerk) (Entered: 10/28/2003)
257 ORDER granting [256−1] motion to extend time to respond to plaintiff's motion to compel document production of records requested in plaintiffs' notice of deposition and subpoenas of 8/8/03 Response to motion reset to 2:00 11/7/03 for [248−1] motion to compel document production of records requested in Plaintiffs' notices of deposition and subpoenas of 08/08/03, reset to 2:00 11/7/03 for [242−1] motion to compel production of records pertaining to discharge class members and potential class members ( Signed by Magistrate Judge Robert L. Dube on 10/28/03) [EOD Date: 10/29/03] (tb, Deputy Clerk) (Entered: 10/29/2003)
258 UNOPPOSED MOTION by All Defendants to extend time to respond to plaintiffs' motion for leave to file an amended and supplemented complaint (bb, Deputy Clerk) (Entered: 11/03/2003)
259 NOTICE by All Defendants of taking deposition duces tecum of Dorothy Adside 11/13/03 at 11:00 a.m. (bb, Deputy Clerk) (Entered: 11/03/2003)
260 NOTICE by All Defendants of continued depositions of Advocacy Center Representative(s) 11/24/03 at 9:00 a.m. and Pat Wear 11/24/03 at 3:00 p.m. (bb, Deputy Clerk) (Entered: 11/03/2003)
261 NOTICE by All Defendants of taking deposition duces tecum of Joseph Hermann 11/25/03 at 9:00, Bertha Love 11/25/03 at 1:00, Lilla Baker 11/25/03 2:30 (bb, Deputy Clerk) (Entered: 11/04/2003)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 26 of 32

11/03/2003 11/05/2003 11/06/2003 11/06/2003 11/07/2003 11/10/2003
11/10/2003
11/10/2003 11/21/2003 11/21/2003
11/21/2003 11/21/2003 11/24/2003
11/24/2003 11/25/2003 11/25/2003 11/26/2003

262 NOTICE by All Defendants of taking deposition duces tecum of John Hall 11/21/03 at 9:00 (bb, Deputy Clerk) (Entered: 11/04/2003)
263 MOTION by All Defendants to extend time to submit expert reports and for expedited ruling (bb, Deputy Clerk) (Entered: 11/06/2003)
264 NOTICE by All Defendants to take deposition of Joseph Hermann 11/12/03 at 1:00 (bb, Deputy Clerk) (Entered: 11/07/2003)
265 RESPONSE by Advocacy Center in opposition to [263−1] motion to extend time to submit expert reports and for an expedited ruling (bb, Deputy Clerk) (Entered: 11/07/2003)
266 MEMORANDUM by All Defendants in opposition to [248−1] motion to compel document production of records requested in Plaintiffs' notices of deposition and subpoenas of 08/08/03 (ra, Deputy Clerk) (Entered: 11/10/2003)
267 ORDER granting [258−1] motion to extend time to respond to plaintiffs' motion for leave to file an amended and supplemented complaint Response to motion reset to 11/10/03 for [253−1] motion for leave to file an Amended and Supplemented Complaint (Proposed Amended and Supplemented Complaint located in Pod 2) (Signed by Magistrate Judge Robert L. Dube on 11/10/03) [EOD Date: 11/12/03] (bb, Deputy Clerk) (Entered: 11/12/2003)
268 MOTION with memorandum in support by All Defendants for leave to file surreply to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members (bb, Deputy Clerk) (Entered: 11/13/2003)
269 MOTION by All Defendants to extend time to respond to plaintiffs' motion for leave to file an amended and supplemented complaint (bb, Deputy Clerk) (Entered: 11/13/2003)
270 REPLY by All Plaintiffs to response to [248−1] motion to compel document production of records requested in Plaintiffs' notices of deposition and subpoenas of 08/08/03 (bb, Deputy Clerk) (Entered: 11/24/2003)
271 MEMORANDUM by All Plaintiffs in opposition to [268−1] motion for leave to file surreply to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members (bb, Deputy Clerk) (Entered: 11/24/2003)
272 OPPOSITION by All Plaintiffs to nunc pro tunc [269−1] motion to extend time to respond to plaintiffs' motion for leave file an amended and supplemented complaint (bb, Deputy Clerk) (Entered: 11/24/2003)
273 SUGGESTION of mootness by All Plaintiffs with respect to defendants' motion for an extension of time to file expert reports (bb, Deputy Clerk) (Entered: 11/24/2003)
274 JOINT MOTION by All Defendants to stay discovery , extend all existing deadlines by sixty (60) days , and continue the trial date in this case in order to enable the parties to complete mediation in this case (bb, Deputy Clerk) (Entered: 11/25/2003)
275 UNOPPOSED MOTION by All Plaintiffs for Isaias Ortiz to withdraw as attorney (bb, Deputy Clerk) (Entered: 11/25/2003)
276 REPLY by All Defendants to response to [263−1] motion to extend time to submit expert reports and for expedited ruling (lk, Deputy Clerk) (Entered: 11/26/2003)
276 RESPONSE by All Defendants to [253−1] motion for leave to file an Amended and Supplemented Complaint (Proposed Amended and Supplemented Complaint located in Pod 2) (lk, Deputy Clerk) (Entered: 11/26/2003)
277 ORDER granting [275−1] motion for Isaias Ortiz to withdraw as attorney (Signed by Judge Jose E. Martinez on 11/26/03) [EOD Date: 12/1/03] (bb, Deputy Clerk) (Entered: 12/01/2003)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 27 of 32

11/26/2003 11/26/2003 12/05/2003 12/08/2003 12/08/2003 12/15/2003
12/29/2003 12/30/2003
12/30/2003

278 NOTICE of Unavailability by All Defendants for dates of: 12/22/03 − 01/02/04 (bb, Deputy Clerk) (Entered: 12/02/2003)
279 REPLY by All Defendants to response to [268−1] motion for leave to file surreply to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members (bb, Deputy Clerk) (Entered: 12/02/2003)
280 RESPONSE by All Defendants to [273−1] suggestion of mootness with respect to defendants' motion for an extension of time to file expert reports (bb, Deputy Clerk) (Entered: 12/08/2003)
281 NOTICE of filing original declaration of Jane Evans by All Defendants (bb, Deputy Clerk) (Entered: 12/08/2003)
282 Declaration of Jane Evans by All Defendants (bb, Deputy Clerk) (Entered: 12/08/2003)
283 ORDER granting in part [274−1] motion to stay discovery, discovery shall be STAYED until 12/18/03; denying without prejudice [274−2] motion extend all existing deadlines by sixty (60) days, denying without prejudice [274−3] motion continue the trial date in case in order to enable the parties to complete mediation this case; setting telephonic status report due on 12/18/03 (Signed by Judge Jose E. Martinez on 12/15/03) [EOD Date: 12/16/03] (bb, Deputy Clerk) (Entered: 12/16/2003)
284 JOINT MOTION by All Defendants, All Plaintiffs to administratively stay case (bb, Deputy Clerk) (Entered: 12/30/2003)
285 ORDER granting [284−1] joint motion to administratively stay case; this case is STAYED until Monday 04/05/04; all pending motions are DENIED without prejudice for statistical purposes only (Signed by Judge Jose E. Martinez on 12/30/03) [EOD Date: 12/31/03] (bb, Deputy Clerk) (Entered: 12/31/2003)
CASE CLOSED. Case and Motions no longer referred to Magistrate. [284−1] joint motion to administratively stay case, [275−1] motion for Isaias Ortiz to withdraw as attorney, [274−1] motion to stay discovery, [274−2] motion extend all existing deadlines by sixty (60) days, [274−3] motion continue the trial date in this case in order to enable the parties to complete mediation in this case, [269−1] motion to extend time to respond to plaintiffs' motion for leave to file an amended and supplemented complaint, [268−1] motion for leave to file surreply to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members, [263−1] motion to extend time to submit expert reports and for expedited ruling, [258−1] motion to extend time to respond to plaintiffs' motion for leave to file an amended and supplemented complaint, [256−1] motion to extend time to respond to plaintiff's motion to compel document production of records requested in plaintiffs' notice of deposition and subpoenas of 8/8/03, [253−1] motion for leave to file an Amended and Supplemented Complaint (Proposed Amended and Supplemented Complaint located in Pod 2), [252−1] motion to extend time to file a reply to defendants' response in opposition to plaintiffs' motion to compel production of records pertaining to discharged class members and potential class members, [248−1] motion to compel document production of records requested in Plaintiffs' notices of deposition and subpoenas of 08/08/03, [242−1] motion to compel production of records pertaining to discharge class members and potential class members, [240−1] motion for telephonic hearing on [237−1] motion for protective order to stay deposition of Pat Wear II and Rule 30(b)(6) Deposition of Advocacy Center for Persons with Disabilities, Inc., pending a ruling on the Plaintiffs' Motion to Quash, [232−1] notice, [232−1] motion to quash subpoena duces tecum of Pat W. Wear II, [238−1] motion for Ruling on [232−1] motion to quash subpoena duces tecum of pat W. Wear II, [237−1] motion for protective order to stay deposition of Pat Wear II and Rule 30(b)(6) Depsoition of Advocacy Center fo Persons with Disabilities, Inc., pending a ruling on the Plaintiffs' Motion to Quash, [232−1] motion to quash subpoena duces tecum of pat W. Wear II, [228−1] motion to extend time to file a motion to compel to defendants' resposne to plaintiff 5th request for document production , [225−1] motion to amend [216−3] order , [222−1] motion to amend [216−3] scheduling order , [221−1] motion for Robert D. Fleischner to appear pro hac vice , [220−1] motion for Steven J. Schwartz to appear pro hac vice , [217−1]

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 28 of 32

01/05/2004
01/05/2004 01/29/2004 02/02/2004

motion for protective order re: use of confidential information during litigation of this matter , [209−1] motion for Thomas B. York to appear pro hac vice , [205−1] motion to extend time to reply to defendant's response to motion to compel , [201−1] motion for leave to file attached response to motion to compel which exceeds page limitation , [198−1] motion to extend time to respond to motion to compel , [196−1] motion to compel discovery , [188−1] motion to extend time to file joint status report , [187−1] motion for telephonic status conference , [166−2] motion , [165−1] motion for oral argument on [164−1] motion to voluntarily withdraw as a plaintiff , [164−1] motion to voluntarily withdraw as a plaintiff , [157−1] motion for judicial notice , [152−1] motion for oral argument on [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents , [151−1] motion to required defendants to permit Dr. Edwards to visit Marianna for up to eight hours per day for a two day period and for a shortened time for defendants to respond to plaintiffs' Rule 34 request for documents , [150−1] motion to extend time to serve responses to second set of interrogatories to Kathleen Kearney and Ruben King−Shaw , [142−1] motion to substitute Stephanie Daniel as Attorney , [141−1] motion to extend time to file , [141−2] motion for leave to file objections to first interrogatories , [138−1] motion to extend time to respond to interrogatories , [137−1] motion to strike [136−1] support memorandum , [125−1] motion to extend time to file objections to order certifying class , [124−1] motion to extend time to file objections to order certifying class , [121−1] motion for leave to file proposed order on class certification , [110−1] motion for protective order and authority therefore , [109−1] motion for reconsideration of [83−2] order, [78−1] motion for leave to file surreply in response to reply to plaintiffs amended response to motion for protective order, [77−1] motion for oral argument on motion for clarification and for expedited decision, [68−1] motion for clarification of powers and duties of guardian ad litem, [64−1] motion to extend time to serve response to USA's motion to intervenet and for leave to participate as amicus curiae, [62−1] motion to file memorandum in excess of 20 pages in respnose to motion for class certification, [61−1] motion to extend time to reply to amended response to motion for protective order, [49−1] motion to extend time to serve responses to the US motion to intervene as of right, [49−2] motion for leave to file to participate as amicus curiae, and to plaintiffs' motion for class certification, [48−1] motion for leave to file /accept reply as timely filed, [46−1] motion for reconsideration of [43−1] order appointing guardian ad litem, [38−1] motion for leave to file memorandum in excess of 20 pages, [37−1] motion to intervene in the first of two motions to dismiss the complaint by United States, [37−2] motion for leave to participate as amicus curiae, [42−1] motion for class certification, [40−1] motion to extend time to file class certification motion nunc pro tunc, [34−1] motion for leave to file response memorandum in excess of twenty pages nun pro tunc, [30−1] motion for appointment of custodian/guardian ad litem, [28−1] motion for Andrew Meyers to appear pro hac vice, [27−1] motion to transfer case to Judge Ferguson, [26−1] motion to extend time to respond to defendants' motion for a protective order, [23−1] motion to extend time to 6/15/98 to respond to motions for protective order, to dismiss and to show cause, [22−1] motion to dismiss the Plaintiff's complaint, [22−2] motion for more definite statement, [21−1] motion for leave to file legal memorandum in support of defendants' motion to dismiss in excess of twenty pages in length, [20−1] motion for protective order, [19−1] motion for entry of Order to Show Cause, [18−1] motion to dismiss complaint, [18−2] motion to strike certain portions of plaintiff's complaint (bb, Deputy Clerk) (Entered: 12/31/2003)
286 ORDER of Magistrate Judge Reassignment in accordance with Administrative Order 2003−112 (Signed by Judge Jose E. Martinez on 01/05/04) [EOD Date: 1/6/04] (bb, Deputy Clerk) (Entered: 01/06/2004)
Magistrate identification: Magistrate Judge Theodore Klein (bb, Deputy Clerk) (Entered: 01/06/2004)
287 JOINT STATUS REPORT by United States (bb, Deputy Clerk) (Entered: 01/29/2004)
288 NOTICE of Unavailability by All Defendants for dates of: 07/28/04 − 08/05/04 (bb, Deputy Clerk) (Entered: 02/03/2004)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 29 of 32

03/25/2004 04/08/2004 04/08/2004 04/21/2004
05/21/2004 05/21/2004 05/26/2004 06/16/2004 06/16/2004 07/12/2004
07/15/2004 08/13/2004 08/19/2004 09/02/2004
09/10/2004
10/08/2004 10/08/2004 10/26/2004 11/02/2004 11/10/2004 11/12/2004 11/18/2004

289 JOINT STATUS REPORT by All Defendants, All Plaintiffs (bb, Deputy Clerk) (Entered: 03/25/2004)
290 JOINT STATUS REPORT (bs, Deputy Clerk) (Entered: 04/09/2004)
290 MOTION by all parties to continue stay (bs, Deputy Clerk) (Entered: 04/09/2004)
291 ORDER granting [290−1] motion to continue stay; the stay in this case shall be continued up through and including 06/21/04 (Signed by Judge Jose E. Martinez on 04/20/04) [EOD Date: 4/22/04] (bb, Deputy Clerk) (Entered: 04/22/2004)
292 NOTICE of filing settlement agreement by All Defendants (bb, Deputy Clerk) (Entered: 05/21/2004)
293 Settlement agreement by All Defendants, All Plaintiffs (bb, Deputy Clerk) (Entered: 05/21/2004)
294 NOTICE of Unavailability by All Plaintiffs for dates of: 07/19/04 − 07/23/04 (bb, Deputy Clerk) (Entered: 05/27/2004)
295 NOTICE of filing amended settlement agreement by All Defendants (bb, Deputy Clerk) (Entered: 06/17/2004)
296 AMENDED settlement agreement by All Defendants, All Plaintiffs (bb, Deputy Clerk) (Entered: 06/17/2004)
297 JOINT MOTION by All Defendants, All Plaintiffs to approve proposed notice to class members of proposed settlement and establish procedure by which notice will be given (bb, Deputy Clerk) (Entered: 07/13/2004)
298 JOINT MOTION by All Defendants, All Plaintiffs for approval of amended settlement agreement (bb, Deputy Clerk) (Entered: 07/16/2004)
299 NOTICE by Bonnie Salerno re: potential closing of Gulf Coast Center in Ft. Myers (bb, Deputy Clerk) (Entered: 08/16/2004)
300 NOTICE of Unavailability by All Plaintiffs for dates of: 11/10/04 − 11/12/04 (bb, Deputy Clerk) (Entered: 08/20/2004)
301 ORDER granting [297−1] joint motion to approve proposed notice to class members of proposed settlement and establish procedure by which notice will be given and denying all pending motions without prejudice for statistical purposes only, denying [298−1] joint motion for approval of amended settlement agreement ( Signed by Judge Jose E. Martinez on 09/01/04) [EOD Date: 9/7/04] (bb, Deputy Clerk) (Entered: 09/07/2004)
302 JOINT NOTICE regarding distribution of class members' comments about the proposed settlement by All Defendants, All Plaintiffs (bb, Deputy Clerk) (Entered: 09/14/2004)
303 ORDER re: Joint Notice of 09/10/04 (Signed by Judge Jose E. Martinez on 10/08/04) [EOD Date: 10/12/04] (bb, Deputy Clerk) (Entered: 10/12/2004)
304 EXHIBITS to: [303−1] order re: Joint Notice of 09/10/04 (bb, Deputy Clerk) (Entered: 10/12/2004)
305 NOTICE of correspondence by Karl Hunziker (mh, Deputy Clerk) (Entered: 10/28/2004)
306 NOTICE of correspondence by Robert W. Morgan (bb, Deputy Clerk) (Entered: 11/03/2004)
307 NOTICE of correspondence by Florida's Voice on Mental Retardation (bb, Deputy Clerk) (Entered: 11/15/2004)
308 NOTICE of correspondence by Marilyn S. Sheplin (bb, Deputy Clerk) (Entered: 11/15/2004)
309 NOTICE of correspondence by Donald R. Stover (bb, Deputy Clerk) (Entered: 11/19/2004)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 30 of 32

11/18/2004 11/23/2004 11/24/2004 11/29/2004 11/29/2004 11/29/2004 12/06/2004 12/08/2004
12/09/2004 12/09/2004 12/09/2004 12/09/2004 12/17/2004 12/17/2004 12/17/2004 12/17/2004 12/17/2004
12/20/2004 12/28/2004
12/28/2004
01/06/2005
01/10/2005

310 NOTICE of correspondence by Rickey and Anna Cotton (bb, Deputy Clerk) (Entered: 11/19/2004)
311 NOTICE of correspondence by Jeanni Greer (bb, Deputy Clerk) (Entered: 11/24/2004)
312 OBJECTION to proposed settlement and request to opt out of class by Shellita Walker (bb, Deputy Clerk) (Entered: 11/29/2004)
313 NOTICE of correspondence by Jada McCree (bb, Deputy Clerk) (Entered: 11/30/2004)
314 MOTION by VOR, FVMR for William J. Burke to appear pro hac vice $75 fee paid (mh, Deputy Clerk) (Entered: 12/02/2004)
314 CLERK'S RECEIPT for: William J. Burke to appear pro paid by VOR, FVMR. AMOUNT: $75 RECEIPT #911491 (mh, Deputy Clerk) (Entered: 12/02/2004)
315 ORDER re: Joint Notice of 09/10/04 (Signed by Judge Jose E. Martinez on 12/06/04) [EOD Date: 12/7/04] (bb, Deputy Clerk) (Entered: 12/07/2004)
316 ORDER granting [314−1] motion for William J. Burke to appear pro hac vice ( Signed by Judge Jose E. Martinez on 12/08/04) [EOD Date: 12/9/04] (bb, Deputy Clerk) (Entered: 12/09/2004)
317 ORDER re: Joint Notice of 09/10/04 (Signed by Judge Jose E. Martinez on 12/09/04) [EOD Date: 12/9/04] (bb, Deputy Clerk) (Entered: 12/09/2004)
318 EXHIBITS to: [317−1] order re: Joint Notice of 09/10/04 (bb, Deputy Clerk) (Entered: 12/09/2004)
319 JOINT witness and exhibit list by All Plaintiffs (bb, Deputy Clerk) (Entered: 12/10/2004)
320 PRE−HEARING MEMORANDUM regarding Fairness Hearing by All Plaintiffs (bb, Deputy Clerk) (Entered: 12/10/2004)
321 NOTICE of substitution of parties by All Defendants (bb, Deputy Clerk) (Entered: 12/17/2004)
322 Transcript filed re: Fairness Hearing held 12/9/04 before Judge Jose E. Martinez Pages: 1−186 (hh, Deputy Clerk) (Entered: 12/17/2004)
323 ORDER re: Joint Notice of 09/10/04 (Signed by Judge Jose E. Martinez on 12/17/04) [EOD Date: 12/20/04] (bb, Deputy Clerk) (Entered: 12/20/2004)
324 EXHIBITS to: [323−1] order re: Joint Notice of 09/10/04 (bb, Deputy Clerk) (Entered: 12/20/2004)
325 JOINT Proposed Findings of Fact and Conclusions of Law on the fairness of the settlement agreement by All Defendants, All Plaintiffs (bb, Deputy Clerk) (Entered: 12/20/2004)
326 POST−HEARING MEMORANDUM in opposition to proposed settlement by VOR, FVMR (bb, Deputy Clerk) (Entered: 12/21/2004)
327 NOTICE of violation of Local Rules 5.1 and 7.7 ( Signed by Judge Jose E. Martinez on 12/28/04) [EOD Date: 12/29/04] (bb, Deputy Clerk) (Entered: 12/29/2004)
328 NOTICE of violation of Local Rules 5.1 and 7.7 ( Signed by Judge Jose E. Martinez on 12/28/04) [EOD Date: 12/29/04] (bb, Deputy Clerk) (Entered: 12/29/2004)
329 NOTICE of violation of Local Rules 5.1 and 7.7 (Signed by Judge Jose E. Martinez on 01/06/05) [EOD Date: 1/7/05] (bb, Deputy Clerk) (Entered: 01/07/2005)
330 NOTICE of violation of Local Rules 5.1 and 7.7 ( Signed by Judge Jose E. Martinez on 01/10/05) [EOD Date: 1/11/05] (bb, Deputy Clerk) (Entered: 01/11/2005)

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 31 of 32

03/14/2005
04/04/2005 04/05/2005 04/05/2005 04/13/2005 04/15/2005 05/02/2005 05/04/2005 06/03/2005
06/13/2005 07/11/2005 08/03/2005 08/11/2005 09/09/2005 09/09/2005 09/09/2005 09/13/2005 09/16/2005 09/22/2005

331 NOTICE OF APPEAL by 82 "Stover Objectors", proposed intervenors defendants of an oral order ; Filing Fee: $ 255.00; Receipt #: 917291 Copies to USCA and Counsel of Record. (hh, Deputy Clerk) Modified on 07/11/2005 (Entered: 04/04/2005)
Certified copies of Notice of Appeal, Docket, and Oral Order under appeal to USCA: [331−1] appeal by 82 "Stover Objectors", proposed intervenors defendants (hh, Deputy Clerk) (Entered: 04/04/2005)
332 Certification Regarding Referred Cases Pursuant to Administrative Order 2005−09 ( Signed by Magistrate Judge Theodore Klein on 04/04/05) [EOD Date: 4/6/05] (bb, Deputy Clerk) (Entered: 04/06/2005)
Magistrate identification: Magistrate Judge Ted E. Bandstra (bb, Deputy Clerk) (Entered: 04/06/2005)
333 NOTICE of Receipt of Notice of Appeal Transmittal Letter from USCA on 4/7/05 Re: [331−1] appeal USCA NUMBER: 05−11903−II (hh, Deputy Clerk) (Entered: 04/14/2005)
334 Acknowledgement of Transcript Information Form re: [331−1] appeal Transcript of: Hearing held 12/9/04 Transcript filed on 12/17/04: Court Reporter name: Larry Herr (hh, Deputy Clerk) (Entered: 04/18/2005)
335 Transcript Information Form as to Proposed Intervenors re: [331−1] appeal . No transcript requested. (hh, Deputy Clerk) (Entered: 05/03/2005)
336 NOTICE of Unavailability by All Defendants for dates of: 11/03/05 − 11/17/05 (bb, Deputy Clerk) (Entered: 05/04/2005)
337 ORDER of dismissal from USCA (certified copy) dismissing [331−1] appeal for want of prosecution because appellant has failed to file an appellant's brief &records excerpts within the time fixed by the rules (APPEAL REINSTATED BY USCA ON 7/5/05) USCA #: 05−11903−II USCA Order Date: 5/31/05(hh, Deputy Clerk) Modified on 07/11/2005 (Entered: 06/06/2005)
338 SUGGESTION OF DEATH of William J. Burke, Esq. (bb, Deputy Clerk) (Entered: 06/14/2005)
339 USCA Case Number [331−1] appeal USCA NUMBER: 05−11903−II In Re: Appellant's motion to remedy default, set aside dismissal and reinstate appeal is GRANTED. (hh, Deputy Clerk) (Entered: 07/11/2005)
340 ORDER of dismissal from USCA (certified copy) dismissing [331−1] appeal for lack of jurisdiction USCA #: 05−11903−II USCA Order Date: 8/1/05 (hh, Deputy Clerk) (Entered: 08/04/2005)
341 ORDER approving [296−1] settlement agreement (Signed by Judge Jose E. Martinez on 08/11/05) [EOD Date: 8/12/05] (bb, Deputy Clerk) (Entered: 08/12/2005)
342 MOTION by Stover Objectors for James D. Arden to appear pro hac vice (bb, Deputy Clerk) (Entered: 09/12/2005)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 926974 (bb, Deputy Clerk) (Entered: 09/12/2005)
343 NOTICE OF APPEAL by Stover Objectors of [341−1] order EOD Date 8/12/05, [161−1] order EOD Date: 2/14/00; Filing Fee: $ 255.00; Receipt #: 926975 Copies to USCA and Counsel of Record. (hh, Deputy Clerk) (Entered: 09/13/2005)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [343−1] appeal by Stover Objectors (hh, Deputy Clerk) (Entered: 09/13/2005)
344 ORDER granting [342−1] motion for James D. Arden to appear pro hac vice ( Signed by Judge Jose E. Martinez on 09/16/05) [EOD Date: 9/19/05] (bb, Deputy Clerk) (Entered: 09/19/2005)
345 NOTICE of Receipt of Notice of Appeal Transmittal Letter from USCA on 9/16/05as to Stover Objectors Re: [343−1] appeal by Stover Objectors USCA

Case: 1:98-cv-673 As of: 01/29/2011 07:40 PM EST 32 of 32

09/22/2005 09/23/2005
02/23/2006 02/23/2006
03/16/2006 03/20/2006 03/21/2006 03/24/2006 03/24/2006 03/24/2006 04/10/2006 10/17/2006
01/16/2007 06/27/2007 06/27/2007
07/02/2007

NUMBER: 05−15167−GG (nc, Deputy Clerk) (Entered: 09/23/2005)
347 TRANSCRIPT INFORMATION FORM by Stover Objectors re: [343−1] appeal by Stover Objectors received on 9/23/05 from Court Reporter. (Returned to Court Reporter Coordinator) (nc, Deputy Clerk) (Entered: 09/26/2005)
346 Acknowledgement of Transcript Information Formas to Stover Objectors re: [343−1] appeal by Stover Objectors Transcript of: Pre−Trial Proceedings held 12/10/04Transcript filed for Stover Objectors ;per Court Reporter name: Larry Herr (nc, Deputy Clerk) (Entered: 09/26/2005)
348 Certificate of readiness as to Stover Objectors transmitted to USCA Re: [343−1] appeal USCA NUMBER: 05−15167−GG (hh, Deputy Clerk) (Entered: 02/23/2006)
Transmitted record on appeal as to Stover Objectors to U.S. Court of Appeals: (Atlanta Office/Jenifer Tubbs) Consisting of (8) Volumes of Pleadings, (1) Volume of Transcripts, (2) Accordian Folders of pleadings and (1) Accordian Folder of Exhibits [343−1] appeal (hh, Deputy Clerk) (Entered: 02/23/2006)
349 ACKNOWLEDGMENT of receipt of: COR/ROA by: USCA ; Date: 3/2/06 (hh, Deputy Clerk) (Entered: 03/16/2006)
350 Letter/Correspondence by Mrs. Judy D. Williamson−Ward re: possible closure of Sunland Center − Marianna, Florida (bb, Deputy Clerk) (Entered: 03/22/2006)
351 Letter/Correspondence by L. Norden Lucke re: settlement agreement re: Tacachale (bb, Deputy Clerk) (Entered: 03/22/2006)
352 ORDER/NOTICE of violation of Local Rules 5.1 and 7.7 ( Signed by Judge Jose E. Martinez on 03/24/06) [EOD Date: 3/27/06] (bs, Deputy Clerk) (Entered: 03/27/2006)
353 ORDER striking [350−1] notice/letter from Mrs. Judy D. Williamson−Ward ( Signed by Judge Jose E. Martinez on 03/24/06) [EOD Date: 3/27/06] (bs, Deputy Clerk) (Entered: 03/27/2006)
354 ORDER striking [351−1] notice/letter from Mr. L. Norden Lucke ( Signed by Judge Jose E. Martinez on 03/24/06) [EOD Date: 3/27/06] (bs, Deputy Clerk) (Entered: 03/27/2006)
355 NOTICE of violation of Local Rules 5.1 and 7.7 ( Signed by Judge Jose E. Martinez on 04/10/06) [EOD Date: 4/11/06] (bb, Deputy Clerk) (Entered: 04/11/2006)
356 USCA MANDATE (Certified Copy) Affirming in part Judgment/Order of the district court with court's opinion as to 343 Notice of Appeal filed by Stover Objectors, in re: USCA# 05−15167−GG copies sent to chambers (see mandate for further details) (No Appeal Record Returned from USCA) (nc) Modified on 10/17/2006 (nc). (Entered: 10/17/2006)
357 Appeal Record Returned from USCA: (Miami Office) Consisting of (8) Volumes of Pleadings and (1) Volume of Transcripts 343 Notice of Appeal USCA NUMBER: 05−15167−GG (hh) (Entered: 01/26/2007)
358 NOTICE by Andrew Agwunobi, Jane E. Johnson, Mac McCoy, Bill Palmer, Don Thomas of Substitution of Parties (Daniel, Stephanie) (Entered: 06/27/2007)
359 Joint MOTION to Dismiss 1 Complaint/Case after Substantial Compliance with Amended Settlement Agreement by All Plaintiffs, All Defendants. Responses due by 7/12/2007 (Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Affidavit)(Daniel, Stephanie) Modified on 6/28/2007 (ls). [Deleted relationship to DE #341, Added relationship to DE #1] (Entered: 06/27/2007)
360 ORDER granting 359 Motion to Dismiss; case closed. Signed by Judge Alan S. Gold on 7/2/07. (hd) (Entered: 07/02/2007)


[CONTENT] May 24, 1998 | Florida | four | Developmental State Institutions for Persons with Developmental Disabilities | Florida ||| Americans | 42 | 12101 ||| ADA | the Rehabilitation Act | 1973 | 29 | U .S.C. ||| § | 794 | Social Security Act | 42 | 1396 ||| 42 ||| 1983 | Due Process and Equal Protection ||| Florida | Advocacy Center for Persons with Disabilities | the U.S District Court | the Southern District | Florida ||| May 1998 | ADA ||| State | State | the Eleventh Amendment | the U.S. Constitution ||| July 1998 | the United States Department of Justice ||| DOJ | ADA ||| DOJ | ADA | the Rehabilitation Act | Congress ||| ADA | the Supreme Court | L.C. | 1998 ||| October 15, 1998 | Ferguson | DOJ ||| March 31, 1999 | Ferguson |||  ||| March 10, 1999 | Court | Wilkie D. Ferguson ||| the Eleventh Circuit | February 3, 2000 | the Eleventh Circuit | Court ||| February 11, 2000 | Court | Ferguson | Revised Order ||| a Settlement Agreement | May 11, 2004 | Court | May 21, 2004 ||| June 16, 2004 | Agreement | the Supported Living Home and | Community-Based Services Waiver | the Developmental Disabilities Home and | Community-Based Services Waiver ||| later than June 30, 2005 | another no later than July 1, 2010 ||| August 11, 2005 | Court | Jose E. Martinez | the Amended Settlement Agreement ||| July 2, 2007 | Martinez | Amended Settlement Agreement [SUMMARY] On May 24, 1998, a group of individuals confined to Florida's four Developmental State Institutions for Persons with Developmental Disabilities ("DSIs") filed suit against the state of Florida and relevant state officials alleging that defendants failed to take appropriate measures to habilitate the plaintiffs, and that the plaintiffs suffered grave harm as a result.  They asserted claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") and its regulations; the Rehabilitation Act of 1973; 29 U .S.C. § 794; the Social Security Act, 42 U.S.C. § 1396 et seq . and its regulations; and 42 U .S.C. § 1983, alleging Due Process and Equal Protection violations.   Represented by Florida's Advocacy Center for Persons with Disabilities, the plaintiffs asked the U.S District Court for the Southern District of Florida for declaratory and injunctive relief.   

In May 1998, defendants filed a motion to dismiss based, among other things, on lack of standing and failure to state a claim under the ADA.  Defendants also argued that plaintiffs were barred from bringing suit against the State because the State was immune from suit by private citizens under the Eleventh Amendment to the U.S. Constitution. In July 1998, the United States Department of Justice filed a motion to intervene in the case and included a memorandum in opposition to defendants' motion to dismiss. The DOJ also filed for leave to address as amicus curiae the proper construction of the ADA as it related to this case. 

In its memo on the motion to dismiss, the DOJ argued that the ADA and the Rehabilitation Act were valid examples of Congress's power to abrogate, or abolish, the states' immunity from suit by private citizens. It also argued that both the ADA and the integration mandate established by the Supreme Court in L.C. v. Olmstead in 1998 provided a cause of action under which plaintiffs could challenge unnecessary institutionalization of mentally ill persons. On October 15, 1998, Judge Ferguson granted the DOJ's motion to intervene in the motion to dismiss and denied its motion to participate as amicus curiae. 

On March 31, 1999, Judge Ferguson denied defendants' motion to dismiss the complaint. 

Meanwhile, the plaintiffs moved for class certification. On March 10, 1999, the Court (Judge Wilkie D. Ferguson) entered an order certifying a class.  Defendants appealed the order to the Eleventh Circuit and on February 3, 2000, the Eleventh Circuit issued an opinion reversing and vacating the class certification order and remanding the matter back to the Court for further action with instructions to certify the class as instructed.  On February 11, 2000, the Court (Judge Ferguson) issued a Revised Order certifying a class. 

After lengthy mediation and negotiations, the parties reached a Settlement Agreement on May 11, 2004, which was filed with the Court on May 21, 2004.  On June 16, 2004, the parties submitted an amended Agreement, according to which defendants agreed to utilize both the Supported Living Home and Community-Based Services Waiver and the Developmental Disabilities Home and Community-Based Services Waiver to serve clients residing in the DSIs.  Defendants also agreed to close one DSI no later than June 30, 2005 and another no later than July 1, 2010.

On August 11, 2005, the Court (Judge Jose E. Martinez) approved the Amended Settlement Agreement.  On July 2, 2007, Judge Martinez granted the parties' Joint Motion to Dismiss Case After Substantial Compliance with Amended Settlement Agreement and closed the case.

