Supreme Court GVR's Bill M.

In today's orders list, the Supreme Court granted certiorari in United States v. Nebraska Dept. of Health and Human Services, summarily vacated the Eighth Circuit's judgment, and remanded for further consideration in light of the Court's recent decision in United States v. Georgia.

This is the Bill M. case about which I have previously blogged a lot of times. The case is a challenge to Nebraska practices that the plaintiffs allege put them at risk of unnecessary institutionalization. It its original opinion in the case, the Eighth Circuit held that the state had sovereign immunity against the suit, because Title II of the ADA does not validly abrogate immunity. The court recognized that Tennessee v. Lane upheld the abrogation of sovereign immunity in one class of Title II cases -- those involving access to the judicial process -- but it effectively confined Lane to its facts. Outside of the narrow class of cases involving access to courts, the court held, the Eighth Circuit's pre-Lane precedent -- which held that Title II's abrogation of sovereign immunity is invalid across the board -- continues to prevail.

The plaintiffs petitioned for en banc review, but the Eighth Circuit denied review with three judges dissenting. The Supreme Court then decided United States v. Georgia. As I said at the time, Georgia endorsed an as-applied approach to determining the constitutionality of Title II's abrogation that is inconsistent with the Eighth Circuit's across-the-board approach here.

The Supreme Court's decision to GVR in Bill M. makes clear, I think, that the Eighth Circuit's largely facial approach to evaluating the constitutionality of Title II's abrogation exists on borrowed time. Last year, the Supreme Court GVR'd an earlier opinion in Klingler for further consideration in light of Lane, but the Eighth Circuit, relying on its opinion in Bill M. stuck to its pre-Lane precedent. This second GVR in a year stands as a bit of a rebuke to the Eighth Circuit. The next time the issue is presented to the Eighth Circuit, that court should follow the Supreme Court's approach in Lane and Georgia of considering whether Title II's abrogation is constitutional as it applies to the case before the court or the class of cases like it. That, I think, is the clear message of the Bill M. GVR.

(Disclosure: I helped the plaintiffs with their en banc petition and their filings in the Supreme Court.)