II.
A.
Cognizant that Title II grants no explicit authority to commence civil litigation, the Department contends that Title II contains an embedded grant of enforcement authority. According to the Department, three aspects of Title II reveal this implied right of action.
The Department first contends that §12134(b) of Title II ''expressly adopted the Rehabilitation Act's detailed enforcement procedures and remedies, including the authority for the Department of Justice to seek remedies through litigation.'' DE 226, at 15. Section 12134(b) does nothing of the sort. That section directs the Attorney General to promulgate regulations that implement Title II, with an instruction that they be ''consistent with'' the Department of Health, Education, and Welfare 's regulations that implement the Rehabilitation Act . 42 U.S.C. §12134(b). This consistency mandate ''does not incorporate the Rehabilitation Act's regulations into the ADA or direct the Attorney General to promulgate identical regulations for Title II.'' Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012). "It simply says that the Attorney General's regulations must be 'consistent'--that is, compatible or not contradictory--with those under the Rehabilitation Act .'' Id.; see also Zimmerman v. Or. Dep't of Justice, 170 F.2d 1169, 1179 (9th Cir. 1999) ("42 U.S.C. §12134(b) does not suggest that Congress intended to incorporate any provisions from the Rehabilitation Act into Title II.'') Section 12134(a) authorizes the Attorney General to define the substantive standards for discrimination under Title II. Because Title II extends the Rehabilitation Act's prohibition against disability-discrimination beyond federal funding recipients to all public entities, the consistency mandate merely ensures that Title Il's substantive standards are analogous to those under the Rehabilitation Act.9 Section 12134(b) has nothing to say about the Rehabilitation Act's procedures or remedies, and it certainly does not go so far as to adopt them.
Next, the Department argues that the ADA's attorney's fee provision, which allows a court to award attorney's fees to a prevailing party ''other than the United States,'' indicates that it may bring suit under Title II. 42 U.S.C. §12205. The Department's argument overlooks a critical aspect of that provision, which appears in the "Miscellaneous Provisions'' subchapter applicable to Titles I, II, and III of the ADA. Specifically, §12205 allows prevailing-party attorney's fees ''[i]n any action or administrative proceeding commenced pursuant to this chapter..." Id. As this Order has explained exhaustively, Titles I and III of the ADA contain explicit authority for the Attorney General to bring suit. Hence, the fact that the United States is not allowed attorney's fees if it prevails in an action under Title I or III of the ADA lends no credence to the Department's argument that it may sue to enforce Title II.
Lastly, the Department asserts that absurd results will follow if this implied right of action to enforce Title II is not recognized. When this argument is unpacked, however, it becomes apparent that the Department's premonitions are entirely misplaced. The Department first complains that ''without recourse to judicial remedies, the federal government would have no effective ability to bring about compliance..." DE 226 at 16. That statement is question-begging at its purest; it simply assumes the answer to the issue presented: whether the federal government is the proper party to effect compliance with Title II. The Department continues that if it is not able to sue to enforce Title II, the public entities subject to it will have free reign to disregard its commands. Not so. Like many other civil rights statutes, Title II employs the concept of a ''private attorney general''--private parties, empowered by a fee-shifting provision, are entitled to effect compliance through litigation.10 See, Fox v. Vice, 563 U.S. 826, 833 (2011) ("When a plaintiff succeeds in remedying a civil rights violation, we have stated, he serves 'as a private attorney general, vindicating a policy that Congress considered of the highest priority'' and ''[h]e therefore 'should ordinarily recover an attorney's fee' from the defendant"). The decision whether to utilize private enforcement or public enforcement lies with Congress alone, for it is the proper body to weigh the benefits and burdens associated with each regime. As the State keenly observes, ''there is nothing absurd in the supposition that Congress might elect to withhold from a federal agency a boundless discretion to sue state and local governments.'' DE 230 at 15.
As it turns out, the Department's concern that it will not be able to commence litigation is at most a half-truth. The Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997, et seq., ("CRIPA'') authorizes the Attorney General to bring suit whenever she has reasonable cause to believe that persons residing in an institution have been deprived of ''any of the rights, privileges, or immunities secured and protected by the Constitution or laws of the United States..." 42 U.S.C. §1997a(a). CRIPA handcuffs that authority, however, by requiring that the conditions resulting in such deprivation be "egregious or flagrant,'' that such deprivation be part of a ''pattern or practice,'' and that the institutionalized persons have "suffered grievous harm.'' Id. The Attorney General herself must ''personally sign any complaint filed pursuant to'' CRIPA. 42 U.S.C. §1997a(c). One of the ADA's core concerns is the treatment of disabled persons confined in institutions. See 42 U.S.C. §§12101(a)(2),(3),& (5); Olmstead, 527 U.S. at 589 n.1. Not surprisingly, then, the Department has used CRIPA as a vehicle to assert Title II violations in the past. E.g., United States v. Arkansas, Case No. 09-00033-CIV-HOLMES (E.D. Ark. 2009). Recognizing the authority the Department seeks in this case would, in effect, allow an end-run around CRIPA's stringent requirements.
The final absurd result the Department expounds is an inability to fulfill the ADA's statement of purpose. One purpose of the ADA is ''to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.'' 42 U.S.C. §12101(b)(3). Without access to a litigation remedy, the Department contends that this general statement of purpose will ring hollow. Of course, a statute's purpose may not be used to ''add features that will achieve the statutory 'purpose' more effectively.'' Newport News, 514 U.S. at 136. Moreover, "[e]very statute proposes, not only to achieve certain ends, but also to achieve them by particular means..." Id. In Titles I and III of the ADA, those means include litigation by the Attorney General. Title II does not elect that option. Instead, the Attorney General was empowered to set the substantive standards that define disability-discrimination under Title II. See 42 U.S.C. §12134(a). Few roles could be more central to a statute's enforcement. Apparently malcontent with that duty, the Department demands not only to draw up the plays, but to carry the ball as well. Newport News aptly resolves the matter: ''The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the two.'' Newport News, 514 U.S. at 136; cf. Alexander, 532 U.S. at 287 ("Raising up causes of action where a statute has not created them may be a proper function for commonlaw courts, but not for federal tribunals."); Cannon, 441 U.S. at 730 (Powell, J., dissenting) (noting that requests for implied causes of action are an "invitation to federal courts to legislate causes of action not authorized by Congress,'' which ''cannot be squared with the doctrine of separation of powers.").
9 For entities subject to both the Rehabilitation Act and Title II, this consistency mandate is particularly apropos. It prevents these entities from being subjected to conflicting sets of standards. Cf. Elwell, 693 F.3d at 1313 ("Obviously, Congress sought in §12134(b) to prevent the Attorney General and the EEOC from whipsawing employers with contradictory rules in areas where their regulatory authority overlaps").
10 As this Court has endeavored to make clear, Title II incorporates from Title VI only those rights that may be exercised by a private party. That is, Title Vl's private right of action. For that reason, the Court's construction does not render superfluous Title Il's incorporation (through §505) of Title VI remedies, as the Department contends.
B.
Without explaining why it applies here, the Department asks the Court to apply the Chevron framework to its understanding of Title II. Under Chevron, "[w]hen a court reviews an agency's construction of the statute which it administers, it is confronted with two questions.'' Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). The Court must first determine "whether Congress has directly spoken to the precise question at issue. If the intent is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'' Id. at 842-43. But ''if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.'' Id. at 843.
Title II grants the Attorney General rulemaking authority to implement the statute's commands. See 42 U.S.C. §12134(a). Pursuant to that authority, the Attorney General has issued substantive regulations, e.g., 28 C.F.R. §35.130(d), as well as one that allows designated agencies to refer complaints of noncompliance to the Attorney General ''with a recommendation for appropriate action.'' 28 C.F.R. §35.174. The Department seeks deference to its belief that "appropriate action'' includes resort to Department-initiated litigation. The fatal defect in the Department's plea for Chevron deference is its failure to distinguish between two distinct concepts: the scope of an agency's authority and the scope of a court's jurisdiction.
Courts must defer ''to an agency 's interpretation of a statutory ambiguity that concerns the scope of the agency's statutory authority.'' City of Arlington v FCC, 569 U.S. ___, 133 S. Ct. 1863, 1868 (2013). For example, if the Federal Communications Commission decided that its authority to regulate the rents that utility-pole owners charge for cable-television pole-attachments extended to attachments that provide both television and internet, that decision would respect the agency's own authority. See id. at 1870 (citing National Cable & Telecomm. Ass'n, Inc. v. Gulf Power Co., 534 U.S. 327 (2002)). Chevron undoubtedly applies in that area. Id. However, courts owe no deference to the agency's understanding of the court's jurisdiction. Cases concerning standing, like Newport News, and the normal rules of construction govern here. Whether Title II confers standing on the Department is plainly an inquiry that falls within this latter category.
It bears mentioning at this juncture that "[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.'' Alexander, 523 U.S. at 291 (''it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself."). Put differently, administrative agencies may not confer standing on private plaintiffs by regulation. Nor may they confer standing on themselves. An administrative agency's entitlement to seek judicial relief must come from the statute itself. Newport News, 514 U.S. at 136; Marshall, 584 F.2d at 676 ("the district courts [have] jurisdiction over cases brought by agencies only when 'expressly authorized to sue by Act of Congress.'"). The judicial task is to determine whether the statute confers standing on the plaintiff (and therefore jurisdiction on the court), not to defer to an agency's position on the matter. Indeed, the Department's request for Chevron deference, if credited, would achieve precisely what Alexander prohibits: using silence or ambiguity to create what Congress has not. Chevron does not apply.11
The Court notes that even if Chevron deference were appropriate in this case, it would do little to assist the Department. As section I of this Order shows, the ADA is neither silent nor ambiguous as to the Department's litigation authority. Title I and III provide for it in clear terms, while Title II provides otherwise, choosing instead to give remedial authority to individuals alleging discrimination. In place of that straightforward reading, the Department puts forth an exotic construction to arrive at the following conclusion: ''The question of who is authorized to take action to ensure that the statutes' remedies, procedures, and rights are available in practice to victims of discrimination is a question that is not answered by the language of the statutes.'' DE 226 at 24. As to the suggestion that "person[s] alleging discrimination'' are the ones entitled to take action, the Department responds that the meaning of the word "person'' is simply not important to a proper understanding of Title II. See DE 226 at 23. Even if it were, the Department posits, it does not mean that Title Il's remedies are provided only to those persons. See DE 226 at 24. That is not a form of reasoning with which the Court is familiar (indeed it appears to be the opposite of the expressio unius cannon). On Title Il's failure to mention the Attorney General in the ''Enforcement'' section, the Department argues that its authority under Title II is ''coextensive with the general public, such that no distinction is necessary.'' DE 226 at 21. Titles I and III on the other hand do mention the Attorney General because she has different rights and responsibilities than private parties under those titles. See DE 226 at 22. There is no reason to assume that Congress would be so deliberate in Titles I and III (setting forth not only the ''what,'' but also ''to whom"), yet so reckless in Title II (delineating only the "what"). Chevron requires courts to defer to permissible statutory constructions, not ingenious academic exercises in the conceivable. What the Department has suggested is of the latter ilk.
11 It is for this reason that the Court departs from Judge Rosenbaum's Order On Motion For Judgement On The Pleadings (DE 40, Case No. 13-61576-CIV-ZLOCH).
C.
The Department's remaining arguments fare no better. Each directs the Court's attention to a purported source of authority outside the statute. Of course, the Department's cause of action, if any, must come from Title II itself. Newport News, 514 U.S. at 136; Marshall, 584 F.2d at 676. Even so, the sources on which the Department relies do not withstand scrutiny.
The Department argues that Executive Order 13217, which directs the Attorney General to "fully enforce Title II of the ADA," supports its authority to bring suit. Exec. Order No. 13217, 66 Fed. Reg. 33,155 (June 18, 2001). The circular nature of this argument should be readily apparent (the Executive Branch has authority to enforce Title II through litigation because the Executive Branch says it has authority to enforce Title II through litigation). Moreover, Executive Order 13217 refers to cooperative efforts with states and alternative dispute resolution, not litigation. See id.
Next, the Department points to a committee report from the House of Representatives that dealt with a previous dealt of Title II's enforcement section. Whatever limited use some courts may find in such legislative history, it certainly cannot be used to override the unambiguous terms Congress chose to enact--particularly where, as here, the legislative history cited concerns language Congress rejected. See, e.g., Harris v. Garner, 216 F.3d 970, 977 (11th Cir. 2000) ("When the import of the words Congress has used is clear, as it is here, we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.").12
The Department's last redoubt is what it contends to be a "substantial history of federal enforcement..." DE 226 at 9.13 In support, the Department cites several district court opinions for the proposition that Title II authorizes it to participate in litigation. Most are not on point, and the remainder are not persuasive. In two of the cases the Department cites, the parties never raised, and the court never considered, the issue of the Department's standing. See United States v. N. Ill. Special Recreation Ass'n, Case No. 12-CV-07613 (N.D. Ill. Apr. 11, 2013); United States v City of Balt., Case No. 09-CV-01049 (D. Md. Feb. 29, 2012). Four others concern the Department's intervention in existing litigation. See Lane v. Brown, Case No. 12-CV-138 (D. Or. May 22, 2013); Steward v. Perry, Case No. 10-CV-01025 (W.D. Tex. Sept. 20, 2012): Lynn E. v. Lvnch, Case No. 12-CV-53 (D.N.H. Apr. 4, 2012); Disability Advocates, Inc. v. Paterson, Case No. 03-CV-03209 (E.D.N.Y. Nov. 23, 2009). In Lynn E., all parties assented to the Department's intervention; in Paterson, no party opposed it; and in Lane and Stewart, no party opposed the Department's intervention on the ground that the Department lacked standing. Thus, none of these cases furthers the Department's position because none actually addressed its standing.
The Court is not persuaded by the three cases that do concern the Department's standing under Title II. In United States v. City and County of Denver, the court found that Title II authorizes suit by the Department because the phrase ''other means authorized by law'' found in Title VI allows the Department to sue. 927 F. Supp. 1396, 1400 (D. Colo. 1996) (citing Marion Cty., 625 F. Supp. at 612).14 However, the court neither discussed the meaning of the ''provides to any person alleging discrimination'' language in Title II, nor analyzed Title Il's enforcement section against that of Titles I and III. Smith v. City of Philadelphia follows the same pattern--looking to Title VI without conducting analysis of Title Il's language and structure. 345 F. Supp. 2d 482, 489-90 (E.D. Pa. 2004). And United States v. Virginia, simply adopts the reasoning of City and County of Denver without any further analysis. Case No. 12-CV-00059 (E.D. Va. June 5, 2012). The Court finds that the language and structure of the ADA compel the opposite conclusion reached in these cases.
12 The Court echoes the sentiments of Justice Antonin Scalia regarding this fictitious hunt for the collective intentions of the Congressional body:
A reliance on legislative history also assumes that the legislature even had a view on the matter at issue. This is pure fantasy. In the ordinary case, most legislators could not possibly have focused on the narrow point before the court. The few who did undoubtedly had varying views. There is no reason to believe, in other words, that a "legislative intent'' ever existed.
Even if legislative intent did exist, there would be little reason to think it might be found in the sources that the courts consult. Floor statements may well have been (and in modern times very probably were) delivered to an almost-empty chamber--or even inserted into the Congressional Record as a virtually invisible "extension of remarks'' after adjournment. Even if the chamber was full, there is no assurance that everyone present listened, much less agreed. As for committee reports, they are drafted by committee staff and are not voted on (and rarely even read) by the committee members, much less by the full house. And there is little reason to believe that members of the committee reporting the bill hold views representative of the full chamber. Quite the contrary, the conventional wisdom is that the Committee on Agriculture, for example, will be dominated by representatives from farming states. (While some political scientists have challenged that view, it is at least clear that the representativeness of committees is unproved.) Statements in committee hearings are so far removed from what the full house possibly could have had in mind that their asserted relevance is comical. And all these doings of the houses of a bicameral legislature could not possibly have entered into the thinking of the other house--or of the President who signed the bill. The stark reality is that the only thing that one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute. The rest is legal fiction.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 376 (2012). Committee reports are not a useful aid in discerning the meaning of statutory language. However, because the Court has been dragged into this morass anyway, it will make some passing observations. The Committee on Education and Labor Report cited by the Department which does contemplate Department lawsuits to enforce Title II, dealt with a prior draft of Title II's enforcement section. That prior draft made the Rehabilitation Act's remedies available ''with respect to any individual who believes that he or she is being subjected to discrimination on the basis of disability.'' H.R. Rep. No. 101-485-II at 98. However, the Committee on the Judiciary rejected the ''with respect to'' language, instead deciding that Rehabilitation Act remedies should be "provide[d] to'' persons alleging discrimination. See H.R. Rep. No. 101-485-111 at 52. That committee's report speaks only of a private right of action. Id. The Senate initially proposed utilizing the "with respect to'' language, but receded from that position in favor of the "provides to'' language. See H.R. Conf. Rep. 101-558 at ¶ 23. One might conclude that these revisions compel the result the Court has reached here. But the Court need not speculate about what interpretive changes were intended by the compromises of persons not charged with a duty to "say what the law is.'' Marbury v. Madison, 5 U.S. 137 (1 Cranch 137), 177 (1803). The text carries the day, and the exercise of sifting through these reports offers no interpretive help.
13 As part of this history, the Department advises that it has entered several settlement agreements and consent decrees to redress Title II violations. See DE 226 at 8. While these efforts to encourage compliance are commendable, they have nothing to do with whether the statute authorizes the Department to sue.
14 The court in City and County of Denver did not consider whether this authority to sue derives from a contractual assurance or from the statute itself--a question the Marion County court expressly avoided. See supra, note 9.
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