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Finding that the remedial scheme of the Americans With Disabilties Act (ADA) is “not comprehensive,” the 8th U.S. Circuit Court of Appeals ruled on Sept. 12 that private individuals may sue state officials in their official capacities for injunctive relief under Title I of the act, applying a doctrine first articulated in the U.S. Supreme Court’s 1908 case Ex Parte Young. The ruling comes in Gibson v. Arkansas Department of Correction, nos. 01-1038 and 01-1114, which consolidated appeals by two Arkansas state employees alleging that their employers failed to accommodate their disabilities. Two Arkansas federal district courts had dismissed the suits, ruling that Congress had not intended to allow them when it created the ADA’s remedial scheme. In 1999, an earlier en banc 8th Circuit ruled in Alsbrook v. City of Maumelle that to the extent the ADA abrogated states’ 11th Amendment immunity, it was not a proper exercise of congressional power. In addition, the act’s remedial scheme precluded a Sec. 1983 action against state officials. The Gibson panel, however, had the recent U.S. Supreme Court case Board of Trustees of the University of Alabama v. Garrett to rely on. And while Garrett held that state employees could not sue their employers for money damages under the ADA, the 8th Circuit explained that the “unambiguous language” of Garrett‘s footnote 9 indicated that its holding was not meant to extend to suits seeking injunctive relief against individuals acting in their official capacity. Both name plaintiff Linda R. Gibson, a Department of Corrections worker, and state police employee Larry Douglas Brown were represented by Luther Sutter of the Little Rock, Ark., firm of Harrill & Sutter. Sutter, who said his case was the first so to rely on the Garrett footnote, opined that the footnote might have been the result of a “deal cut” or “a concession that Justice Rehnquist made to get that fifth vote.” But the 8th Circuit’s holding in reliance on the footnote was, he insisted, “good law.” “How can anyone reasonably believe that disabled people aren’t being discriminated against by state governments?” he added. “Up until 1995, a deaf person in Arkansas couldn’t even serve on a jury!” Attorney Tim Gauger, currently of the Little Rock firm Mitchell, Williams, Selig, Gates & Woodyard, represented the state in Gibson while working in the Attorney General’s Office. He said, “The court got around Alsbrook by saying that dicta in Garrett overruled it. It will be interesting to see if the AG’s office pushes for an en banc rehearing of the case.” In Sutter’s view, Gibson‘s true import lies in the impact it may have on a recent “wave” of nursing home cases like Olmstead v. L.C., where the U.S. Supreme Court said in 1999 that states cannot discriminate against people with disabilities when providing services. “Olmstead said states have to deliver services in the communities before they can force people into nursing homes,” Sutter said. “They’re not doing that. So this case says to states that Olmstead still applies to them, and that if they continue to violate it they’ll be sued.”

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