Amicus Update 2021

February 5, 2022
Amicus Update 2021

NDRN Signs on to Amicus in Support of Petition for Cert for Individual with an Intellectual Disability Facing the Death Penalty

On February 16, 2021, NDRN signed onto an amicus brief authored by Jim Ellis and Anna Delpha from the University of New Mexico in support of a petition for certiorari in the U.S. Supreme Court in Phillips v. Florida, a direct appeal from an adverse decision from the Florida Supreme Court on behalf of Mr. Phillips. Mr. Phillips is a man with an intellectual disability facing the death penalty. The U.S. Supreme Court had held in Atkins v. Virginia, 536 U.S. 304 (2002) that it was unconstitutional to execute an individual with an intellectual disability. However, the Florida Court in Phillips reversed its earlier holding in Walls v. State, 213 So. 3d 340 (Fla. 2016) and decided that the U.S. Supreme Court’s Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), requirement of using clinical standards to evaluate intellectual disability claims applies only to new claims and is not retroactive. The amicus brief reframes the issue of retroactivity and whether or not Hall is a new rule in light of the long history of the use of “Standard Error of Measurement” (SEM) in the assessment of IQ scores as part of a diagnosis of intellectual disability.



NDRN, Alabama P&A and 7 Disability Groups File Amicus in Support of Petition for Cert for Individual with an Intellectual Disability Facing the Death Penalty

On March 1, 2021, NDRN signed onto an amicus in Jenkins v. Alabama, supporting a petition for cert before the U.S. Supreme Court on behalf of Mark Allen Jenkins, an Alabama man with an intellectual disability facing the death penalty in Alabama. The brief was authored by attorneys with the law firm of Munger, Tolles & Olson LLP. NDRN joined with the Alabama Disabilities Advocacy Program and seven other amici (including two other P&As) in support of Mr. Jenkins. The brief strongly emphasizes that Alabama failed to follow precedent and created a new standard that contradicts the rights afforded a person with a developmental disability to prove their status as such in capital punishment cases.



NDRN Joins AARP Amicus in Medicare Case for Hospital Patients Under Observation  

On March 5, 2021, NDRN signed onto an AARP amicus in in Bagnell v. Cochran, formerly captioned Alexander v. Azar (2d Cir.), a nationwide class action involving due process rights of hospitalized Medicare beneficiaries to challenge their designation as outpatients under observation rather than inpatients. The brief addressed the devastating financial consequences of the “observation status designation for seniors requiring skilled nursing facility care and the CMS regulations that incentivize the observation status designation.”



NDRN, NAD, NFB & DRBA Filed an Amicus in Support of the Deaf-Blind Bus Rider Represented by Minnesota P&A Challenging the Failure of Bus Drivers to Comply with ADA Requirements 

On March 11, 2021, NDRN filed an amicus brief in Segal v. Metropolitan Council (8th Cir.) in support of a deaf-blind plaintiff who is represented by the Minnesota Disability Law Center (the Minnesota P&A). The NDRN amicus was authored pro bono by Bridget Clark and Andrew Dhuey and was joined by the National Association of the Deaf and the National Federation of the Blind and Disability Rights Advocates and the Disability Rights Bar Association. The case challenges the repeated failure of the transit agency to ensure its bus drivers complied with the Department of Transportation’s (DOT) ADA requirements on how to stop at bus stops so that passengers with visual and hearing disabilities can identify the correct bus they want to ride. The amicus also discusses the need for private enforcement of the DOT ADA regulations and what constitutes meaningful access to the bus system for a deaf blind rider.



En Banc Second Circuit Rules Against Tenant Claim that Landlord Had Duty to Act Against Tenant-on-Tenant Harassment  

On March 25, 2021 the Second Circuit in Francis v. Kings Park Manor issued an unfavorable seven – five en banc decision discussed reversing the district court. On May 7, 2020 NDRN joined four other disability, aging and LGBT organizations in an amicus brief authored by AARP and Lambda Legal Defense and Education Fund. The brief focused on how discriminatory harassment is a tool of segregation, denies vulnerable people including people with disabilities and LGBT people equal housing opportunities.



Ninth Circuit Holds that Individual Can Self Train Their Own Service Animal

On March 30, 2021 the Ninth Circuit in C.L. v. Del Amo Hospital issued a favorable decision for a plaintiff who trained her own psychiatric service dog.


NDRN, Disability Rights California and five other disability rights organizations filed an amicus brief on February 7, 2020 authored by pro bono counsel at Munger, Tolles & Olsen. The brief provided an extensive discussion of the Department of Justice ADA regulations, rulemaking commentary, and other guidance documents that made it clear that individuals with disabilities may self-train service animals and formal certification is not required. It also provided detail on how approval of the district court’s ruling would create substantial obstacles to people obtaining and training service animals.



Eleventh Circuit Reverses District Court and Finds Websites are Not Public Accommodations under the ADA 

On April 7, 2021, the Eleventh Circuit reversed the district court trial decision and held that the websites were not public accommodations under ADA Title III and Winn-Dixie’s inaccessible website did not exclude plaintiff Gil from Winn-Dixies goods and services.


Over three years earlier, in December 2017, NDRN and Disability Rights Florida P&A joined 13 other national and state disability rights organizations in an amicus in support of the plaintiff who was successful in the district court in Gil v. Winn-Dixie Stores, Inc. regarding website accessibility.


Plaintiff Gil filed a petition for rehearing en banc in late April 2021 but NDRN was unable to join that amicus due to the very short deadline involved.



Supreme Court Denies Petitions for Certiorari by Individuals Asserting They Were Individuals with Intellectual Disabilities, Not be Subject to the Death Penalty

In May 2020 the U.S. Supreme Court denied petitions for certiorari in Phillips v Florida (petition filed February 16, 2021, petition denied May 24, 2021) and in Jenkins v Dunn (petition filed March 1, 2021, petition denied May 17, 2021). NDRN had joined amicus briefs in both cases which involved men with intellectual disabilities facing the death penalty in Florida and in Alabama. The petitions challenged the failure of state courts to appropriately apply the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304 (2002).



NDRN, Disability Rights New York and 35 Disability Organizations File Amicus in Support of a Petition for Rehearing on Whether the State Bar Examiners Were Recipients of Federal Financial Assistance. Less than a Month Later the Second Circuit Denied the Petition

On May 19, 2021, NDRN and Disability Rights New York joined 35 other national and state disability rights organizations in an amicus brief authored by the Autistic Self-Advocacy Network, supporting the unsuccessful plaintiff in T.W. v. N.Y. State Board of Law Examiners (2d Cir.). The issue on appeal was whether the New York State Board of Law Examiners was a recipient of federal financial assistance. The amicus brief argued that the panel’s decision contravened Congress’s intent that four civil rights laws be applied as broadly as possible.


On June 8, 2021, the Second Circuit denied the petition for rehearing.  



NDRN Joins 27 other Disability Organizations in the National Health Law Program’s Amicus in a Case Involving Denying Needed Behavioral Care

On May 19, 2021, NDRN joined 27 other national and state disability rights organizations in an amicus authored by the National Health Law Program and the Center for Health and Policy Innovation in Witt v. United Behavioral Health (9th Cir.) The case involved restrictive insurance practices that denied behavioral health treatment. The amicus argues that the district court was correct in finding defendant developed and applied improper, overly restrictive medical necessity guidelines contrary to generally-accepted standards of care to deny needed behavioral health care to people enrolled in its insurance products.



Supreme Court Holds Plaintiffs Lacked Standing in Latest Challenge to Affordable Care Act.  NDRN Joined 18 other Disability Organizations in Support of the ACA 

On June 17, 2021 the Supreme Court held in California v. Texas that plaintiffs lacked standing to challenge the Affordable Care Act,


NDRN had joined 18 other disability rights organization in an amicus filed on May 13, 2020, arguing that even if the minimum coverage provision is deemed invalid it can be severed from the rest of the Affordable Care Act (ACA). Amici asserted that the drafters of the ACA intended for people with disabilities to have improved coverage and protections under the ACA and would have wanted the other provisions beneficial to people with disabilities to remain intact.



NDRN Joined Six Other Disability Rights Organizations in an Amicus Support of a Petition for Rehearing in an Inappropriate IDEA Exhaustion Case

On July 15, 2021, NDRN joined six other disability rights organizations in an amicus in support of a petition for rehearing en banc drafted by the Council of Parent Attorneys and Advocates (COPAA) in Perez v. Sturgis Pub. Sch. (6th Cir. 2021). The amicus supported petitioner’s argument that exhaustion of remedies under the IDEA were inappropriate in the kind of fact situation in this case.


The Sixth Circuit denied the petition for rehearing on July 29, 2021.



NDRN, Disability Rights Texas and Other Disability Rights Organizations Filed an Amicus in Support of a Petition for Rehearing in a School Discipline case

On July 22, 2021, NDRN joined an amicus filed by Disability Rights Texas and four other disability rights organizations in support of a petition for rehearing en banc in T.O. v. Fort Bend Indep. Sch. Dist. (5th Cir. 2021). The amicus argued that the landscape on school discipline had changed since some of the court’s early decisions on school discipline and violence.


The Fifth Circuit denied the petition for rehearing on September 16, 2021.



Seventh Circuit Finds Nursing Home Reform Act Privately Enforceable

On July 27, 2021, the Seventh Circuit issued a favorable decision in reversing a district court order in Talevski v. Health and Hospital Corp. of Marion County in a case involving the enforceability of the Nursing Home Reform Act. NDRN joined an amicus filed by the National Health Law Program (NHeLP).



NDRN, the New Hampshire P&A and an Other Advocacy Organization filed an Amicus Supporting Legislators with Disabilities Seeking Remote Participation During the COVID-19 Pandemic

On July 23, 2021, NDRN joined by the Disability Rights Center of New Hampshire and ABLE (Advocates Building Lasting Equality) New Hampshire filed an amicus authored by a private attorney for the en banc review in Cushing v. Packard (1st Cir. 2021). The case involves New Hampshire legislators with disabilities who sought the accommodation of remote participation in legislative business due to COVID-19. The amicus argued that the ADA requires reasonable accommodations for individuals with disabilities and provided stories about specific issues faced by legislators with disabilities.



Second Circuit Reverses District Court on Summary Judgment for MTA in Subway Elevator Maintenance Suit

On August 23, 2021, the Second Circuit in Brooklyn Center for Independence of the Disabled, et. al. v. Metropolitan Transportation Authority (MTA), ___F.4th___, 2021 WL 3713540 (2d Cir. Aug. 23, 2021) reversed the grant of summary judgment for the New York MTA and remanded. NDRN filed an amicus drafted by pro bono counsel from Quinn Emanuel Urquhart & Sullivan focused on the Congressional intent to end the exclusion of people with disabilities from public transportation and to ensure elevators at new and key stations were available when needed for access. The suit alleged the MTA failed to maintain the subway system elevators.


NDRN and Nine Other Disability Organizations Filed an Amicus in the U.S. Supreme Court in a Case Where the Fifth Circuit Held the Emotional Distress Damages Were Not Available under the Rehabilitation Act

On August 30, 2021, NDRN joined nine other disability and disability rights organizations in an amicus filed in the U.S. Supreme Court in Cummings v. Premier Rehab Keller, #20-219. The case seeks to reverse a decision of the Fifth Circuit Court of Appeals that held that damages for mental distress were not available under the Rehabilitation Act. The disability organization amicus argues that denying damages for mental anguish would leave some people with disabilities with no remedy even for egregious violations of the law. The amicus also educates the court about the fact that emotional distress damages, though crucial, are hard to prove and reasonable in scope in disability discrimination cases.



Ninth Circuit Reverses District Court Grant of Summary Judgment for the Stadium in a Line-of-Sight for Wheelchair Users Suit

On September 1, 2021, the Ninth Circuit issued a favorable decision in Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist. reversing the district court on whether the Seattle Mariners baseball stadium compiled with the ADA regulations regarding sightlines for wheelchair users. NDRN had joined 16 other disability rights groups in an amicus filed in May 1, 2020.



NDRN, the Maryland P&A and 4 Other Disability Organizations File Amicus on Whether a Court Could Condition Probation on the Student Not Being Suspended from School

On September 3, 2021, NDRN joined Disability Rights Maryland and four other disability organizations in an amicusin In Re: S.F. (Maryland Court of Appeals) arguing that court should prohibit “no-suspension” conditions of probation, which target students with disabilities and students of color and are contrary to the rehabilitative purpose of probation.



NDRN joins Virgin Islands and Guam P&As in an Amicus in the U.S. Supreme Court Arguing that the Court Needs to Look at all the Territories in a Case Involving the Exclusion of Puerto Rico from the SSI program

On September 7, 2021, NDRN joined the amicus brief of the Disability Rights Center of the Virgin Islands and Guam Legal Services-Disability Law Center in U.S. v. Vaello Madero (U.S. Supreme Court) arguing that the Court’s analytical scope must encompass all four territories excluded by the Social Security provision, 42 U.S.C. §1382c that excluded residents from Puerto Rico and the territories from receiving Supplemental Security Income (SSI) payments.



NDRN Filed an Amicus Brief on the Psychological Harm of Solitary Confinement on Prisoners with Serious Mental Illness

On September 27, 2021, NDRN filed an amicus brief in Clark v. Coupe (3d. Cir.) arguing that solitary confinement inflicts psychological harm on inmates with serious mental illness and prison officials should not be entitled to qualified immunity because of the obvious harm caused.



In October 2021, NDRN Joined 10 Disability Rights Organizations in an Amicus Brief in CVS v. Doe. In November, the Petitioner CVS Agreed to Dismiss the Case Avoiding a Decision on Whether Section 504 of the Rehabilitation Act and the ACA Provide a Disparate Impact Cause of Action

On October 29, 2021, NDRN joined 10 other disability rights organizations in an amicus in the U.S. Supreme Court in CVS v. Doe. The amicus urges the court to dismiss the writ as improvidently granted and remand for consideration of respondent reasonable accommodation and disparate treatment claims. The case involved a CVS mandate that individuals on HIV+ medications use the CVS mail prescription service rather than a neighborhood CVS pharmacy with in-person pharmacist consultation. The Supreme Court had granted certiorari on the question whether Section 504 of the Rehabilitation Act, and by extension the ACA, provides a disparate-impact cause of action for plaintiffs alleging disability discrimination.


After considerable negotiations between CVS and national disability rights organizations, on November 11, 2021, CVS and the plaintiffs filed a joint stipulation to dismiss the case and on November 12, 2021, the Writ of Certiorari was dismissed by the Supreme Court. Advocates sought withdrawal of the case out of a concern that the Supreme Court might rule unfavorably for persons with disabilities on the issue of whether Section 504 and the ADA provides a disparate-impact cause of action for disability discrimination.



Eleventh Circuit holds that Plaintiff’s ADA Title II Suit was Not Barred by the Statute of Limitations Because Plaintiff Had Not Been Injured When He Filed an Earlier Suit

On November 12, 2021, the Eleventh Circuit issued a favorable decision in Karantsalis v. City of Miami Springs, FL., reversing a district court order that had dismissed plaintiff’s ADA Title II suit as barred by the statute of limitations. NDRN and Disability Rights Florida filed an amicus in support of plaintiff.



NDRN joins National Health Law Program and Child USA in Amicus in Challenge to West Virginia’s Child Welfare System and its Failures to Provide Services for Foster Children with Disabilities

On November 15, 2021 in Jonathan R. v. Justice, a systemic suit brought by Disability Rights of West Virginia against the state’s foster care system in the Fourth Circuit. NDRN joined the National Health Law Program (NHeLP), Child USA, a non-profit think tank focused on working to end abuse and neglect, and a child welfare agency in an amicus drafted by pro bono counsel. The district court had granted the state’s motion to dismiss. The amicus discusses the practical meaning of data related to West Virginia’s foster care system for youth in the system and how institutional reform cases targeted at foster care in other jurisdictions have resulted in better outcomes for youth in those jurisdictions.



NDRN Joins P&As and COPAA in IDEA Amicus Supporting Missouri P&A Case Involving Least Restrictive Environment 

On November 19, 2021, in J.P. v. Belton Sch. Dist. #124 NDRN joined the Arkansas, Iowa, Minnesota and South Dakota P&As and the Disability Rights Education and Defense Fund (DREDF) in an amicus in an IDEA case prepared by the Council of Parent Attorneys and Advocates (COPAA) in Eighth Circuit Court of Appeals. The amici provided the court with extensive empirical research demonstrating the efficacy of providing education to children with disabilities in the Least Restrictive Environment (LRE).


On November 24, 2021, the school district filed a motion opposing leave to file the amicus. On December 1, 2021 an Eighth Circuit judge denied amici’s motion for leave to file the brief, but COPAA filed a motion for reconsideration of the order on December 1, 2021, and the Eighth Circuit granted leave to file the amicus on December 7, 2021.




NDRN, all Sixth Circuit P&As & the Arc of Ohio File Amicus in Support of Petition for Cert for Individual with an Intellectual Disability Facing the Death Penalty

On December 21, 2021, NDRN and the Kentucky, Michigan, Ohio and Tennessee P&As and the Arc of Ohio filed an amicus in support of the petition for certiorari in Hill v. Shoop in the U.S. Supreme Court. The amicus seeks to educate the court about how using “present functioning” violated the clinical guidelines for diagnosing intellectual disability.




NDRN, the Georgia P&A and others File Amicus in Support of Petition for Cert for Individual with an Intellectual Disability in Challenge to Georgia’s Beyond a Reasonable Doubt Standard for Establishing Intellectual Disability 

On December 27, 2021, NDRN and the Georgia Advocacy Office joined 2 other disability rights organizations and three medical and academic experts in intellectual disabilities in an amicus in support of the petition for certiorari in Young v. Georgia in the U.S. Supreme Court. The amicus focuses on educating the court about how Georgia’s Beyond-a-Reasonable-Doubt standard violates the medical communities’ longstanding framework for diagnosing intellectual disability.




NDRN and Bazelon Center File Amicus in U.S. Supreme Court’s Consideration for a Stay in the OSHA Vaccination or Testing Requirement for Employers with 100 or More Employees

In December 29, 2021, NDRN and the Bazelon Center filed an amicus in the U.S. Supreme Court in In Re: MCP No. 165, Occupational Safety and Health Administration (OSHA) Interim Final Rule Rule: COVID-19 Vaccination and Testing, Emergency Temporary Standard (ETS) 86 Fed. Reg. 61402, Issued on Nov. 4, 2021. The Supreme Court was considering the request for a stay filed by a large group of states and businesses seeking to stop enforcement of the OSHA ETS requiring employers with 100 or more employees to impose a vaccination or testing and mask program. The amicus focused on educating the Court how COVID-19 presents an especially “grave danger” to employees who are exposed to others in the workplace and who have medical conditions that make them particularly vulnerable to infection. The Supreme Court granted the stay in National Federation of Independent Business, et al. v. Dept. of Labor, Occupational Safety and Health Administration (January 13, 2022).