No. 96-16952 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DERRICK CLARK, et al., Plaintiffs-Appellees v. STATE OF CALIFORNIA, et al., Defendants-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BRIEF FOR THE UNITED STATES AS INTERVENOR ISABELLE KATZ PINZLER Acting Assistant Attorney General JESSICA DUNSAY SILVER SETH M. GALANTER Attorney Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION. . . . . . 2 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . .2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT: I. THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT. . . . . . . .6 II. 42 U.S.C. 2000d-7 VALIDLY REMOVES ELEVENTH AMENDMENT IMMUNITY FOR CLAIMS UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973. . . . . . . 15 A. The Abrogation Of Eleventh Amendment Immunity Contained In 42 U.S.C. 2000d-7 Is A Valid Exercise Of Congress' Power Under Section 5 Of The Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . .15 B. The State Waived Its Eleventh Amendment Immunity To Section 504 Suits By Accepting Federal Funds After The Enactment Of Section 2000d-7. . . . . . . . . . . . . . . . . . . . . .20 III. IF THIS COURT FINDS THE ABROGATIONS UNCONSTITUTIONAL, THIS ACTION MAY STILL PROCEED AGAINST THE STATE OFFICIALS UNDER THE DOCTRINE OF EX PARTE YOUNG. . . . . . . . . . . . . .. . . . . 23 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . .25 CERTIFICATE OF COMPLIANCE - i - TABLE OF AUTHORITIES CASES: Armstrong v. Wilson, No. 96-16870 (9th Cir.). . . . . . . . . . . .14, 25 Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1997). . . . . . .. . . . 12-13 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985). . . . . . . . . . . . . . . . . . . . . 16, 19, 21, 22 Bell v. New Jersey, 461 U.S. 773 (1983). . . . . . . . .. . . . . . .22-23 Board of Educ. v. Rowley, 458 U.S. 176 (1982). . . . . . . . . . . . . 13 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). . . . . . . . . . . . . . . . . . . . . 8, 9 Counsel v. Dow, 849 F.2d 7311 (2d Cir.), cert. denied, 488 U.S. 955 (1988). . . . . . . . . . . . . . . . . . . 14 Crawford v. Pittman, 708 F.2d 1028 (5th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 14 David D. v. Dartmouth Sch. Comm., 775 F.2d 411 (1st Cir. 1985), cert. denied 475 U.S. 1140 (1986). . . . . . . .14 Department of Educ. 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). . . . . . . . . . . . . . . . . . . . . . .16 Diamond v. Charles, 476 U.S. 54 (1986). . . . . . . . . . . . . . . . . 1 Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . .6, 15 EEOC v. County of Calumet, 686 F.2d 1249 (7th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . 12 EEOC v. Wyoming, 460 U.S. 226 (1983). . . . . . . . . . . . . . . . .13, 17 Edelman v. Jordan, 415 U.S. 651 (1974). . . . . . . . . . . . . . . .21, 24 Ex parte Virginia, 100 U.S. (10 Otto) 339 (1879). . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 Ex parte Young, 209 U.S. 123 (1908). . . . . . . . . . . . . . . . . passim Fitzpatrick v. Bitzer, 427 U.S. 445 (19 . . . . . . . . . . . . . 7, 18, 19 - ii - CASES (continued): PAGE Florida Dep't of Health & Rehabilitative Servs., v. Florida Nursing Home Ass'n, 450 U.S. 147 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . . . . . . . . . . .18 Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . . 23, 24 Hodgson v. University of Texas Med. Branch, No. G-95-612, 1997 WL 50173 (S.D. Tex. Feb. 6, 1997) . . . . . . . . . . . 13 Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996), appeal pending, No. 96-5388 (11th Cir.) .. . . . . . .20 Katzenbach v. Morgan, 384 U.S. 641 (1966) . . . . . . . . . .8, 11, 14 Keller v. United States, 213 U.S. 138 (1909) . . . . .. . . . . . . .18 Kimel v. Florida Bd. of Regents, 1996 U.S. Dist. Lexis 7995 (N.D. Fla. May 17, 1996), appeal pending, No. 96-2788 (11th Cir.) . . . . . . . . . . . 13 Lane v. Pena, 116 S. Ct. 2092 (1996) . . . . . . . . . . . . . . .15, 21 Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) . . . . . . . . . . .24 MacPherson v. University of Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996), appeal pending No. 96-6947 (11th Cir.) . . . .. . . . . . . . .13 Maher v. Gagne, 448 U.S. 122 (1980) . . . . . . . . . . . . . . . . 11, 12 Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993) . . . . . . . . . . . . . . . . . . . . . . . .20 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) . . . . . . . . . . . . . . . . . . . . . . .9 Mayer v. University of Minn., 940 F. Supp. 1474 (D. Minn. 1996) . . . . . . . . . . . . . . . . . . . . . . 10, 20 Mitten v. Muscogee County Sch. Dist., 877 F.2d 932 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990) . . . . . . . . . . . . .. . . . . . . . . .14 Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420 (9th Cir. 1996) . . . . . . . . . 24 Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich. 1996) .. . . . . . . . . 20 - iii - CASES (continued): PAGE Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . . . . . . . . . . . . . 11 Papasan v. Allain, 478 U.S. 265 (1986) . . . . . . . . . . . . . . . . .23 Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959) . . . . . . . . . . . . . . . . . . . . . . 21 Ouern v. Jordan, 440 U.S. 332 (1979) . . . . . . . . . . . . . . . . . .24 Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694 (1st Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . 12 Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25 (2d Cir. 1991), cert. denied, 502 U.S. 1094 (1992) . . . . . . . . . . . . .13, 20 Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3370 (U.S. Oct. 29, 1996) (No. 96-710) . . . . . . . . . . . . . .17-18 Scanlon v. Atascadero State Hosp., 735 F.2d 359 (9th Cir. 1984), rev'd on other grounds, 473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . . . . . . 16 Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . .passim South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . . 23 Stanley v. Darlington County Sch. Dist., 879 F. Supp. 1341 (D.S.C. 1995), rev'd in part on other grounds, 84 F.3d 707 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . 20 Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984), vacated, 471 U.S. 148 (1985) . . . . . . . . . . . . . . . . . . . . . . 16 Teichgraeber v. Memorial Union Corp., 946 F. Supp. 900 (D. Kan. 1996) . . . . . . . . . . . . . . . . . . . . . . . . .13 Timmer v. Michigan Dep't of Commerce, 104 F.3d 833 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 18, 19 United States v. Butler, 297 U.S. 1 (1936) . . . . . . . . . . . . . . 18 United States v. Harris, 106 U.S. (16 Otto) 629 (1883) . . . . . . . . . . . . . . . . . . . . . . . . . . 18 - iv - CASES (continued): PAGE United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) . . . . . . . . . .17 United States v. Yonkers Bd. of Educ., 893 F.2d 498 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 20 United Steelworkers of America v. Weber, 443 U.S. 193 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468 (1987) . . . . . . . . . . . . . . . . . . . .16, 17 Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996) . . . . . . . . . 8 Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948) . . . . . . . . . . .17 CONSTITUTION, STATUTES AND REGULATIONS: United States Constitution: Art. I, S 8, Cl. 1, Spending Clause . . . . . . . . . . 2, 16, 20 Art. I, S 8, Cl. 3, Commerce Clause . . . . . . . . . . . . . .13 Art. VI, Supremacy Clause . . . . . . . . . . . . . . . . . . .24 Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . passim Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . passim Section 1, Due Process Clause . . . . . . . . . . . . . . . . .12 Section 1, Equal Protection Clause . . . . . . . . . . . . passim Section 5 . . . . . . . . . . . . . . . . . . . . . . . . .passim Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. . . . . . . . . . . . . . . . . . . . . .12 Americans with Disabilities Act (ADA) . . . . . . . . . . . . . . .passim 42 U.S.C. 12101(b)(4) . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12202 . . . . . . . . . . . . . . . . . . . . . . .6, 7 Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . . . . . . 7, 18 Civil Rights Remedies Equalization Act, 42 U.S.C. 2000d-7 . . . . . . . . . . . . . . . . . . . . .passim - v - STATUTES (continued): PAGE Individuals with Disabilities Education Act, 28 U.S.C. 1400 et seq. . . . . . . . . . . . . . . . . . . . . 13 Rehabilitation Act of 1973, Section 504 . . . . . . . . . . . . . .passim 28 U.S.C. 2403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 LEGISLATIVE HISTORY; S. Rep. No. 388, 99th Cong., 2d Sess. (1986) . . . . . . . . . . . . . 19 131 Cong. Rec. 22,344 (1985) . . . . . . . . . . . . . . . . . . . . . 19 131 Cong. Rec. 22,346 (1985) . . . . . . . . . . . . . . . . . . . . . 19 132 Cong. Rec. 28,624 (1986) . . . . . . . . . . . . . . . . . . . 19, 22 136 Cong. Rec. 11,467 (1990) . . . . . . . . . . . . . . . . . . . . . 14 136 Cong. Rec. 11,468 (1990) . . . . . . . . . . . . . . . . . . . . . 14 S. 1579, 99th Cong., 1st Sess. (1985) . . . . . . . . . . . . . . . . .19 - vi - IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 96-16952 DERRICK CLARK, et al., Plaintiffs-Appellees V. STATE OF CALIFORNIA, et al., Defendants-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BRIEF FOR THE UNITED STATES AS INTERVENOR INTEREST OF THE UNITED STATES The United States appears as intervenor to defend the constitutionality of Congress' abrogation of States' Eleventh Amendment immunity for private suits under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. The United States has a statutory right to intervene to defend the constitutionality of its statutes, 28 U.S.C. 2403 (a), giving it an interest distinct from the private parties' claims of injury. See Diamond v. Charles, 476 U.S. 54, 64-65 (1986). Moreover, because of the inherent limitations on administrative enforcement mechanisms and on the litigation resources of the United States, the United States has an interest in ensuring that - 2 - these statutes may be enforced against States by private parties acting as private attorneys general. STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The United States agrees with the plaintiffs-appellees' jurisdictional statement. STATEMENT OF THE ISSUES 1. Whether the statutory abrogation of Eleventh Amendment immunity for suits under the Americans with Disabilities Act (ADA) is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment. 2. Whether the statutory abrogation of Eleventh Amendment immunity for suits under Section 504 of the Rehabilitation Act of 1973 is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment or the Spending Clause. 3. If the Court finds the statutory abrogations unconstitutional, whether the doctrine of Ex parte Young applies to suits brought against state officials for prospective injunctive relief to remedy continuing violations of the ADS and Section 504. STATEMENT OF THE CASE 1. Plaintiffs, Derrick Clark and Ambrose Woods, brought a suit seeking injunctive relief under, inter alia, the ADA and Section 504 on behalf of themselves and class of similarly situated persons, against California, the California Department - 3 - of Corrections, and various California state officials in their official capacities (E.R. 1-24).1/ On October 1, 1996, the district court denied the defendants' motion to dismiss the suit on the basis of Eleventh Amendment immunity (E.R. 25-51). This timely appeal followed (E.R. 52-53). 2. Based on the allegations in the complaint, which must be taken as true at this stage of the proceedings, plaintiffs are a class of individuals with developmental disabilities incarcerated in correctional facilities operated by the State (E.R. 6). For example, named plaintiff Clark has an I.Q. of less than 60 and cannot read or write without assistance (E.R. 7). Although Clark requires psychotropic medication, that medication was withheld from him because he was " 'too stupid'" (E.R. 7). Named plaintiff Woods is also developmentally disabled and a slow learner and, like Clark, has been denied access to prison services because he was " 'too stupid'" (E.R. 8). In general, plaintiffs' disabilities prohibit them, absent reasonable accomodation, from "paticipat[ing] fully in programs that are available to other inamtes, including work, education and health care programs" (E.R. 16). In addition, the absence of reasonable accomodations place inmates with developmental disabilities at a severe disadvantage 1/ E.R. refers to the appellants' Excerpts of Record. Br. refers to the Appellants' Opening Brief. - 4 - in terms of complying with prison rules (E.R. 15). The State provides inmates written regulations governing their conduct (E.R. 9). Plaintiffs are unable to read and comprehend these regulations, leading them to inadvertently violate the rules (E.R. 3, 8-9). In turn, because of their disabilities, plaintiffs are unable to understand the subsequent disciplinary proceedings and cannot mount an adequate defense on their own behalf (E.R. 9, 15). 3. On the defendants' motion to dismiss, the district court held that the plaintiffs' claims under the ADA and Section 504 were not barred by the Eleventh Amendment (E.R. 34-40). It found that both statutes contained express abrogations of Eleventh Amendment immunity and that these abrogations were valid exercises of Congress' authority under Section 5 of the Fourteenth Amendment (E.R. 129-138). Because the abrogations were valid, it declined to address whether the claims against the state officials acting in their official capacities also fell within the doctrine of Ex parte Young (E.R. 40 n.4). SUMMARY OF ARGUMENT The Eleventh Amendment is no bar to this action brought by private plaintiffs under the ADA and Section 504 to remedy discrimination against persons with disabilities. Both the ADA and Section 504 contain express statutory abrogations of Eleventh Amendment immunity. The abrogation in the ADA is a valid exercise of Congress' power under Section 5 of the Fourteenth - 5 - Amendment, which authorizes Congress to enact "appropriate legislation" to "enforce" the Equal Protection Clause. In exercising that power, Congress is not limited to legislating in regard to classifications that the courts have found are "suspect." To the contrary, Congress is authorized by the Fourteenth Amendment to enact whatever legislation it determines is appropriate to secure to all persons "the enjoyment of perfect equality of civil rights and the equal protection of the laws." Ex parte Virginia, 100 U.S. (10 Otto) 339, 346 (1879). The abrogation of Eleventh Amendment immunity for Section 504 actions is also valid under Section 5 of the Fourteenth Amendment. In addition, the abrogation for Section 504 suits is a valid exercise of Congress' power under the Spending Clause to impose unambiguous conditions for receiving federal funds. In 42 U.S.C. 2000d-7, Congress put States on notice that accepting federal funds waived their Eleventh Amendment immunity to discrimination suits under Section 504. In either case, the abrogation for Section 504 suits is constitutional and the district court had jurisdiction over the action. Finally, if this Court finds the statutory abrogations are unconstitutional, the district court may still retain jurisdiction over the state officials under the doctrine of Ex parte Young. - 6 - ARGUMENT I THE ABROGATION OF ELEVENTH AMENDMENT IMMUNITY CONTAINED IN THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF CONGRESS' POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT Citing the Supreme Court's recent decision in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the defendants contend that Congress did not have the constitutional authority to abrogate Eleventh Amendment immunity for suits brought by private plaintiffs under Title II of the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504). In Seminole Tribe, the Supreme Court articulated a two-part test to determine whether Congress has properly abrogated States' Eleventh Amendment immunity: first, whether Congress has unequivocally expressed its intent to abrogate the immunity; and second, whether Congress has acted pursuant to a valid exercise of power. 116 S. Ct. at 1123 (citations, quotations, and brackets omitted). Section 12202 of Title 42 provides that a "State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter." This Court held in Duffy v. Riveland, 93 F.3d 447, 452 (9th Cir. 1996), that the ADA contained the "unmistakably clear statutory language" necessary to constitute an abrogation. Indeed, the - 7 - defendants concede (Br. 8 n.2) that Section 12202 clearly satisfies the first requirement. The second inquiry under Seminole Tribe is whether "Congress has the power to abrogate unilaterally the States' immunity from suit." 116 S. Ct. at 1125. Here the Fourteenth Amendment provides that authority. Section 5 of the Fourteenth Amendment empowers Congress to enact "appropriate legislation" to "enforce" the Equal Protection Clause. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court upheld the abrogation of States' Eleventh Amendment immunity in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as "appropriate" legislation under Section 5. It explained that "[w]hen Congress acts pursuant to S 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. See 116 S. Ct. at 1125, 1128, 1131 n.15. The abrogation of Eleventh Amendment immunity in the ADA can thus be upheld if the ADA is an appropriate exercise of Congress' Section 5 power. A statute is "appropriate legislation" to enforce the Equal Protection Clause if the statute "may be regarded as an enactment to enforce the Equal Protection Clause, [if] it is 'plainly adapted to that end' and [if] it is not - 8 - prohibited by but is consistent with 'the letter and spirit of the constitution.'" Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). The defendants, who bear the burden of showing a duly enacted congressional statute to be unconstitutional, argue only that the abrogation contained in the ADA fails the first prong of the Katzenbach test. Although Congress need not expressly invoke the constitutional powers upon which it relied, it did so in the ADA. Congress' express intent in enacting the ADA 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 people with disabilities." 42 U.S.C. 12101(b)(4).2 Nor can the defendants dispute that discrimination on the basis of disability is subject to scrutiny under the Equal Protection Clause. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the Court unanimously declared unconstitutional a decision by a city to deny a special use 2 The defendants' reliance (Br. 10-11) on Wilson-Jones v. Caviness, 99 F.3d 203 (6th Cir. 1996), is therefore inappropriate. Wilson-Jones addressed the question whether the Fair Labor Standards Act (FLSA), a statute that was not directed at discrimination and expressly invoked only the Commerce Clause, could be regarded as an enactment to enforce the Equal Protection Clause. Unlike the FLSA, Congress expressly invoked the Fourteenth Amendment in the text of this anti-discrimination statute. Thus there can be no question that Congress intended the statute to be regarded as Section 5 legislation. See Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838-842 (6th Cir. 1997) (limiting Wilson-Jones). - 9 - permit for the operation of a croup home for people with mental retardation. Although a majority declined to deem classifications on the basis of mental retardation as "quasi- suspect," it held that this did not leave persons with such disabilities "entirely unprotected from invidious discrimination." Id. at 446. Instead, it found a violation of the Equal Protection Clause because "the record [did] not reveal any rational basis" for the decision to deny a special use permit. Id. at 448. The defendants argue (Br. 11-15) that the ADA cannot be regarded as a statute to enforce the Equal Protection Clause because classifications on the basis of disability are not "suspect." But suspectness describes the degree of scrutiny by which a court examines legislative actions. The concept does not govern the power of Congress to legislate pursuant to its plenary power under Section 5. As the Court noted in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314 (1976), the rational-basis standard for evaluating most equal protection claims "reflect[s] the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." That "the line might have been drawn differently * * * is a matter for legislative, rather than judicial, consideration." United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). But the institutional limitations that generally constrain the judiciary to employ a - 10 - standard of rational review in evaluating claims based on the Equal Protection Clause are, by definition, inapplicable to Congress. Not only is Congress institutionally better suited to making such determinations, it is also charged by the Constitution with the responsibility for making such determinations. Although federal courts have an important role to play in protecting individuals from State infringement of Fourteenth Amendment rights, Section 5 has vested in Congress the authority to enact legislation it believes necessary to enforce those rights -- giving it power over the States greater than that entrusted in the judiciary. "It is not said that the judicial power of the general government shall extend to enforcing the prohibition and protecting the rights and immunities guaranteed. * * * It is the power of Congress which has been enlarged." Ex parte Virginia, 100 U.S. at 345. Thus "[t]he fact that the Supreme Court has subjected governmental classifications involving suspect classes to a higher level of scrutiny than other classifications does not prevent Congress from finding that another class of persons has been subjected to a history of unequal treatment and legislating pursuant to its enforcement powers under the Fourteenth Amendment to protect that class of persons from arbitrary discrimination." Mayer v. University of Minn., 940 F. Supp. 1474, 1479 (D. Minn. 1996). - 11 - Oregon v. Mitchell, 400 U.S. 112 (1970), in which a majority of the Court invalidated Congress' attempt to lower the voting age in state elections from 21 to 18, is not to the contrary. The statute at issue in Oregon was not struck down because it involved age -- a non-suspect characteristic. Rather, it was invalidated because it imposed a nationwide voting age by altering qualifications for state elections -- a power committed to the States by the express language of the Constitution -- and because it did not purport to remedy discrimination of any kind.3 Any implication in Oregon that Congress was limited in exercising its Section 5 authority to legislate only with regard to suspect classifications was repudiated by the Supreme Court in Maher v. Gagne, 448 U.S. 122 (1980). In Maher, the plaintiff brought a suit under 42 U.S.C. 1983 against a state official 3 Justice Black took the position that the Constitution reserved to the States the power to establish voter qualifications in state and local elections and, unless necessary to remedy racial discrimination, Congress could not interfere with the States' exercise of that power. See 400 U.S. at 130. Justice Harlan voted to invalidate the legislation because, in his view, the Fourteenth Amendment simply did not encompass "political rights" or, more specifically, the right to vote and, therefore, Congress had no power to legislate with respect to voter qualifications pursuant to Section 5. See 400 U.S. at 140. Justice Stewart, writing for himself, Chief Justice Burger, and Justice Blackmun, agreed with Justice Black that the Constitution reserves to the States the power to set voter qualifications, including reasonable age limitations, and concluded that, unlike the situation presented in Katzenbach v. Morgan, there was no basis for regarding reduction of the minimum voting age to 18 as necessary to prevent invidious discrimination of any sort. See 400 U.S. at 203-206. - 12 - 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 S 5 Congress may pass any legislation that is appropriate to enforce the guarantees of the Fourteenth Amendment. A statute awarding attorney's 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. See id. at 133 n.16; see also id. at 134-135 (Powell, J., concurring in part). We are aware of no court of appeals decision that has adopted the approach advocated by the defendants in this case and limited Congress' Section 5 authority to legislation regarding "suspect" classifications. To the contrary, the courts of appeals have unanimously upheld the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., as a valid exercise of Congress' Section 5 authority, despite the fact that age is not a suspect classification. See, e.g., Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698-700 (1st Cir. 1983); EEOC v. County of Calumet, 686 F.2d 1249, 1251-1252 (7th Cir. 1982); Arritt v. - 13 - Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); see also Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 30 (2d Cir. 1991) (dictum), cert. denied, 502 U.S. 1094 (1992).4 The sole district court opinion upon which the defendants rely (Br. 12) is against the weight of authority and is currently on appeal. See MacPherson v. University of Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996), appeal pending, No. 96-6947 (11th Cir.).5 Courts have reached a similar conclusion in cases involving the individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., which requires "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Board of Educ. v. Rowley, 458 U.S. 176, 201 (1982). The four courts of appeals to address the question have held that Congress validly exercised 4/ The defendants are incorrect in stating (Br. 12) that a majority of the Court in EEOC v. Wyoming, 460 U.S. 226 (1983), "intimated" that the ADEA was not a valid exercise of Congress' Section 5 authority. The Court held that the ADEA as applied to States was a valid exercise of Congress' Commerce Clause authority and expressly left the Fourteenth Amendment question open. See id. at 243-244 & n.18. Justice Stevens stated at the beginning of his concurrence that he "join[ed] the Court's opinion," but that he wished to add "additional comments" about "the origins and purpose of the Commerce Clause." Id. at 244. 5/ The United States has intervened in that appeal to defend the constitutionality of the abrogation. Every other reported opinion after Seminole Tribe has upheld the ADEA's abrogation. See Hodgson v. University of Texas Med. Branch, No. G-95-612, 1997 WL 50173 (S.D. Tex. Feb. 6, 1997); Teichgraeber v. Memorial Union Corp., 946 F. Supp. 900 (D. Kan. 1996); Kimel v. Florida Bd. of Regents, 1996 U.S. Dist. Lexis 7995 (N.D. Fla. May 17, 1996), appeal pending, No. 96-2788 (11th Cir.). - 14 - its Section 5 authority to abrogate States's Eleventh Amendment immunity for suits alleging that children with disabilities had been deprived of rights guaranteed by the Act. See Mitten v. Muscogee County Sch. Dist., 877 f.2d 932, 937 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990); Counsel v. Dow, 849 F.2d 731, 737 (2d Cir.), cert. denied, 488 U.S. 955 (1988); David D. v. Dartmouth Sch. Comm., 775 f.2d 411, 421 n.7 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986); Crawford v. Pittman, 708 F.2d 1028, 1036-1038 (5th Cir. 1983). Like these statutes, the ADA can be regarded as legislation to enforce the Equal Protection Clause. As Representative Dellums explained during the enactment of the ADA, "we are empowered with a special responsibility by the 14th amendment to the Constitution to ensure that every citizen, not just those of particular ethnic groups, not just those who arguably are 'able- bodied,' not just those who own property -- but every citizen shall enjoy the equal protection of the laws." 136 Cong. Rec. 11,467 (1990); see also id. at 11,468 (remarks of Rep. Hoyer). As the defendants have not argued that the abrogation of Eleventh Amendment immunity in the ADA fails to meet the other requirements enunciated in Katzenbach, this Court should find the abrogation a valid exercise of Congress' Section 5 authority.6/ 6/ To the extent this Court believes it appropriate to address the other Katzenbach requirements, we refer it to our Brief as Intervenor and Amicus Curiae in Armstrong v. Wilson, No. 96- 16870, which is also calendared before this panel. - 15 - II 42 U.S.C. 2000d-7 VALIDLY REMOVES ELEVENTH AMENDMENT IMMUNITY FOR CLAIMS UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973 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." Section 2000d-7 is an express abrogation of Eleventh Amendment immunity. See Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996); Lane v. Pena, 116 S. Ct. 2092, 2099 (1996). As with the ADA, the only question is whether it is a valid exercise of any of Congress' powers. As explained more fully below, Congress properly abrogated Eleventh Amendment immunity from Section 504 claims pursuant to its authority under Section 5 of the Fourteenth Amendment. Moreover, the State waived its Eleventh Amendment immunity to Section 504 suits when it elected to accept federal funds after the effective date of Section 2000d-7. A. The Abrogation Of Eleventh Amendment Immunity Contained In 42 U.S.C. 2000d-7 Is A Valid Exercise Of Congress' Power Under Section 5 Of The Fourteenth Amendment For the reasons discussed in Part I, Section 2000d-7 is a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment to permit private suits against States for discriminating against individuals with disabilities in violation of federal law. The defendants argue (Br. 14 n.6) that because - 16 - Section 504 is Spending Clause legislation, the abrogation of Eleventh Amendment immunity for Section 504 suits contained in Section 2000d-7 is an invalid Spending Clause enactment. We believe both the premise and conclusion of that argument are incorrect. 1. First, the Supreme Court has stated and this Court has held that, as applied to public entities, Section 504 was enacted pursuant to the Fourteenth Amendment. In Scanlon v. Atascadero State Hospital, 735 F.2d 359, 361 (9th Cir. 1984), this Court held that Congress validly abrogated States' Eleventh Amendment immunity for suits alleging discrimination on the basis of disability pursuant to Section 5 in Section 504 of the Rehabilitation Act. See also Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538, 544 (9th Cir. 1984), vacated, 471 U.S. 148 (1985); 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). Although the Supreme Court reversed because of the absence of an express abrogation (an absence remedied by 42 U.S.C. 2000d-7), it did not question this Court's holding as to the constitutional basis of Section 504. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244-245 n.4 (1985). Indeed, in Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468 (1987), the Supreme Court stated, albeit in dictum, that "[t]he Rehabilitation Act was passed pursuant to S 5 of the Fourteenth - 17 - Amendment. Congress therefore had the power to subject unconsenting States to suit in federal court." Id. at 472 n.2 (citations omitted). Assuming the question were still open in this Circuit, the defendants' argument contradicts the longstanding rule of judicial review (which they invoke (Br. 10 n.4)) that "the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); EEOC v. Wyoming, 460 U.S. 226, 243-244 n.18 (1983) (quoting Woods). The courts can strike down laws only if they exceed Congress' constitutional authority or otherwise violate rights guaranteed by the Constitution. Nothing in the Constitution, however, requires Congress to identify the constitutional provision by which it legislates. Congress is not required "to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." United States v. Rybar, 103 F.3d 273, 282 (3d Cir. 1996). As the Seventh Circuit recently held, "a statute's constitutionality should not depend on the ability of congressional staff to write a plausible brief for it into the committee reports. * * * [I]t is not the motive of the legislators that is important * * *, but whether the statute they pass is within the scope of their constitutional authority." Sasnett v. Sullivan, 91 F.3d 1018, 1020-1021 (1996), petition for - 18 - cert. filed, 65 U.S.L.W. 3370 (Oct. 29, 1996) (No. 96-710). The Sixth Circuit reached a similar conclusion in Timmer v. Michigan Department of Commerce, 104 F.3d 833, 842 (6th Cir. 1997), holding that it "discerned no persuasive reasons * * * why the courts should frustrate [Congress' intent to abrogate] simply because the legislative history does not contain the words 'S 5 of the Fourteenth Amendment.'" These holdings are consistent with Supreme Court precedent that statutes must be upheld against constitutional attack if they are within any of Congress' power. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 473-478 (1980) (opinion of Burger, C.J.); United States v. Butler, 297 U.S. 1, 61 (1936); Keller v. United States, 213 U.S. 138, 147 (1909); United States v. Harris, 106 U.S. (16 Otto) 629, 635-636 (1883). 2. Moreover, assuming arguendo that Section 504 as enacted in 1973 was solely Spending Clause legislation, that would not be dispositive as to the constitutional basis of Section 2000d-7. In Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976), the Court found that the abrogation of States' Eleventh Amendment immunity for Title VII suits was a valid exercise of Congress' Section 5 authority, even though Title VII itself was originally enacted pursuant to the Commerce Clause. See United Steelworkers of America v. Weber, 443 U.S. 193, 207 n.6 (1979). Similarly, the abrogation of States' Eleventh Amendment immunity in Section 504 is a valid exercise of Congress' Section 5 authority, even if - 19 - Section 504 itself was originally enacted solely pursuant to the Spending Clause. See Timmer, 104 F.3d at 838 n.7.1/ Not surprisingly, every court that has considered the constitutional basis of Section 2000d-7 since Seminole Tribe was decided has held it was a proper exercise of Congress' Section 5 1/ Although Congress need not state its intent to rely upon its Section 5 authority in the text or legislative history, the legislative history of Section 2000d-7 makes clear that Congress so intended. See Fitzpatrick, 427 U.S. at 453 n.9 (relying on legislative history in determining whether "Congress exercised its power under S 5 of the Fourteenth Amendement"). Section 2000d-7 was originally introduced by Senator Cranston as the Civil Rights Remedies Equalization Act, S. 1579, 99th Cong., 1st Sess. (1985), as a response to the Supreme Court's decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). See 131 Cong. Rec. 22,344 (1985). Senator Cranston described the proposed legislation as "clearly authorized" by both the Spending Clauase and Section 5 of the Fourteenth Amendment. Id. at 22,346. The Senate Committee Report likewise referred to both of these constitutional provisions as permitting abrogation of state immunity. See S. Rep. No. 388, 99th Cong., 2d Sess. 27 (1986). After the Senate version of the bill was adopted in conference, Senator Cranston submitted for the record a letter from the Department of Justice stating that [t]he proposed amendment * * * fulfills the requirements that the Supreme Court laid out in Atascadero. Thus, to the extent that the proposed amendment is grounded on congressional powers under section five of the fourteenth amendment, [it] makes Congress' intention "unmistakably clear in the language of the statute" to subject States to the jurisdiction of Federal courts. 132 Cong. Rec. 28,624 (1986) (citations omitted). - 20 - authority.8/ This is the same conclusion courts reached prior to Seminole Tribe.9/ B. The State Waived Its Eleventh Amendment Immunity To Section 504 Suits By Accepting Federal Funds After The Enactment Of Section 2000d-7 Since Congress had authority under the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity, it is unnecessary to consider whether Congress may also, pursuant to the Constitution's Spending Clause, Art. I, S 8, Cl. 1, require the waiver of States' Eleventh Amendment immunity as a condition of receiving federal financial assistance. Nonetheless, the defendants' contention that the Supreme Court's decision in Seminole Tribe somehow prohibits such an exercise of the Spending Clause power is incorrect. To the contrary, Congress may condition the receipt of federal funds on a waiver of Eleventh Amendment immunity so long as, as here, the statute provides unequivocal notice to the States of this condition. 8/ In addition to the district court below, see Hunter v. Chiles, 944 F. Supp. 914, 917 (S.D. Fla. 1996), appeal pending, No. 96-5388 (11th Cir.); Mayer v. University of Minn., 940 F. Supp. 1474, 1478-1480 (D. Minn. 1996); Niece v. Fitzner, 941 F. Supp. 1497, 1501-1504 (E.D. Mich. 1996). 9/ See United States v. Yonkers Bd. of Educ., 893 F.2d 498, 503 (2d Cir. 1990); Santiago v. New York State Dep't of Correctional Servs., 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). - 21 - States may waive their Eleventh Amendment immunity. See Seminole Tribe, 116 S. Ct. at 1128; Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959). It is well-settled that a State may "by its participation in the program authorized by Congress * * * in effect consent[] to the abrogation of that immunity." Edelman v. Jordan, 415 U.S. 651, 672 (1974); see also 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 program"). In Atascadero, the Court stated that if a statute "manifest[ed] a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity," the federal courts would have jurisdiction over States that accepted federal funds. 473 U.S. at 247; see also Florida Dep't of Health & Rehabilitative Servs. v. Florida Nursing Home Ass'n, 450 U.S. 147, 153 (1981) (Stevens, J., concurring). It was in response to Atascadero that Congress enacted 42 U.S.C. 2000d-7, making unambiguously clear that Congress intended the States to be amenable to suit in federal court under Section 504 if they accepted federal funds. See Lane v. Pena, 116 S. Ct. at 2100 (acknowledging "the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States' Eleventh Amendment immunity" in Section 2000d-7). The defendants cannot now claim that suits - 22 - against it under Section 504 are barred, as the State consented to such suits when it accepted federal funding after Section 2000d-7 took effect (E.R. 17). The defendants may argue that Seminole Tribe precludes Congress from using its Spending Clause power to abrogate a State's Eleventh Amendment immunity. Although the effect is the same, when Congress acts under the Spending Clause, it does not abrogate Eleventh Amendment immunity. Instead, Congress conditions the receipt of federal funds on a waiver of that immunity by the States themselves. As the Department of Justice explained to Congress at the time the statute was being considered, "[t]o the extent that the proposed amendment is grounded on congressional spending powers, [it] makes it clear to states that their receipt of Federal funds constitutes a waiver of their [E]leventh [A]mendment immunity." 132 Cong. Rec. 28,624 (1986). Section 2000d-7 thus embodies exactly the type of unambiguous condition discussed by the Court in Atascadero, putting States on express notice that part of the "contract" for receiving federal funds was the requirement that they consent to suit in federal court for alleged violations of Section 504. Since the State accepted federal funds after the effective date of Section 2000d-7, it has waived its Eleventh Amendment immunity to suit in this case. "Requiring States to honor the obligations voluntarily assumed as a condition of federal funding * * * simply does not intrude on their sovereignty." Bell v. New - 23 - Jersey, 461 U.S. 773, 790 (1983); see South Dakota v. Dole, 483 U.S. 203, 210 (1987). III IF THIS COURT FINDS THE ABROGATIONS UNCONSTITUTIONAL, THIS ACTION MAY STILL PROCEED AGAINST THE STATE OFFICIALS UNDER THE DOCTRINE OF EX PARTE YOUNG If this Court were to find that the abrogations of Eleventh Amendment immunity contained in the ADA and Section 504 were invalid, California and the California Department of Corrections would have to be dismissed as defendants. However, the suit could continue against the named state officials under Ex parte Young, 208 U.S. 123 (1908). Under the doctrine of Ex parte Young, the Eleventh Amendment is no bar to "federal judisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to 'end a continuing violation of federal law.'" Seminole Tribe, 116 S. Ct. at 1132 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). As plaintiffs seek only prospective "injunctive and declaratory relief" to end continuing violations of the ADA and Section 504 (E.R. 28), this action falls squarely within the Ex parte Young doctrine. The defendants argue (Br. 15-16) that because the relief sought in this case against the state officials is in reality against the State, Ex parte Young is inapplicable. But States may only act through their officials. And the Supreme Court recognized in Papasan v. Allain, 478 U.S. 265, 278 (1986), that - 24 - the Eleventh Amendment is not a bar to seeking injunctive relief against state officials under Ex parte Young even though such relief may have a "substantial ancillary effect on the state treasury," so long as the "relief * * * serves directly to bring an end to a present violation of federal law." Second, the defendants argue (Br. 16-21) that Ex parte Young should extend only to violations of federal constitutional law, not federal statutory law. But they concede (Br. 17) that that is not the law of this Circuit. See Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 422-423 (9th Cir. 1996) (collecting cases). Moreover, such an argument ignores that when state officials violate federal law, they also violate the Supremacy Clause, U.S. Const. Art. VI, which makes federal law "the supreme Law of the Land." See Green, 474 U.S. at 68; see also Edelman v. Jordan, 415 U.S. 651 (1974) (adjudicating case involving violation of federal statutory law under Ex parte Young); Quern v. Jordan, 440 U.S. 332 (1979) (same); Lussier v. Dugger, 904 F.2d 661, 670 n.10 (11th Cir. 1990) (collecting Section 504 cases litigated under Ex parte Young). - 25 - CONCLUSION The district court's judgment should be affirmed. Respectfully submitted, ISABELLE KATZ PINZLER Acting Assistant Attorney General JESSICA DUNSAY SILVER SETH M. GALANTER Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994 STATEMENT OF RELATED CASES The appellants in Armstrong v. Wilson, No. 96-16870, which is also calendared before this panel, have mounted a similar challenge to the constitutionality of the abrogations in the ADA and Section 504. Similarly, one of the issues raised by the appellants (California officials sued in their official capacities) in Hale v. Belshe, No. 97-15177, is whether the ADA's abrogation of Eleventh Amendment immunity is constitutional. CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the answering brief of the United States uses a monospaced typeface of 10.5 or less characters per inch, is appropriately double- spaced, and contains 5,574 words. February 25, 1997 SETH M. GALANTER Attorney CERTIFICATE OF SERVICE I hereby certify that on February 25, 1997, two copies of the foregoing Brief for the United States As Intervenor were served by first-class mail, postage prepaid, on the following counsel: William Jenkins Deputy Attorney General 50 Fremont Street, Room 300 San Francisco, California 94105 Donald Specter Prison Law Office General Delivery San Quentin, California 94964 Caroline N. Mitchell Pillsbury, Madison & Sutro LLP 235 Montgomery Street, Suite 1328 San Francisco, California 94104 Mark A. Chavez Chavez & Gertler One Market Plaza, Suite 1475 Steuart Street Tower San Francisco, California 94105 SETH M. GALANTER Attorney Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994