Bruggeman, Brian v. Blagojevich, Rod

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-1730
BRIAN BRUGGEMAN, et al.,
Plaintiffs-Appellants,
v.
GEORGE H. RYAN, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 5392—John F. Grady, Judge.
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SUBMITTED DECEMBER 31, 2002—DECIDED JANUARY 3, 2003
OPINION JANUARY 27, 2003
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Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
POSNER, Circuit Judge. The United States filed an amicus
curiae brief in this appeal on June 24, 2002, and later a brief
as an intervenor, pursuant to 28 U.S.C. § 2403(a), which
provides that the court “shall permit” the United States
to intervene in a case when the constitutionality of any Act
of Congress affecting the public interest is challenged. The
requirement that the act affect the public interest is in-
tended to exclude the occasional federal statute that has
a purely local or otherwise extremely circumscribed ap-
plication, see, e.g., Cox v. Schweiker, 684 F.2d 310, 319 (5th
2 No. 02-1730
Cir. 1982), and that is not the character of the statute at is-
sue here, as will appear. The appellees have moved to
strike the second brief on the ground that by filing it the
government was trying to circumvent Fed. R. App. P. 29’s
prohibition against the filing of reply briefs by amici curiae,
and that in any event the constitutionality of an Act of
Congress is not being challenged and so the government
has no right to intervene. We allowed the government
to submit both an amicus curiae brief and an intervenor’s
brief in Doe v. University of Illinois, 200 F.3d 499 (7th
Cir. 1999), but we did not discuss the propriety of the dual
filing.
The government’s amicus brief in this case, which was
filed in support of the appellants, was limited to the ques-
tion whether, consistent with the principle of Ex parte
Young, 209 U.S. 123 (1908), suits seeking prospective in-
junctive relief against state officials in their official capac-
ity may be brought under Title II of the Americans with
Disabilities Act. Because an amicus brief must be filed
within seven days after the principal brief of the party in
support of whom the amicus brief is filed, Fed. R. App.
P. 29, the government had no right to intervene at the
time it filed its amicus brief unless the constitutionality
of a federal statute affecting the public interest was at
issue in the appeal. In their response to the appellants’
brief, which obviously was filed after the government
filed its amicus brief, the appellees argued that the dis-
trict court had erred in denying their Eleventh Amend-
ment defense to the plaintiffs’ claim under section 504 of
the Rehabilitation Act. In doing this, the appellees were
necessarily challenging the constitutionality of 42 U.S.C.
§ 2000d-7(a)(1), a provision of the Civil Rights Act of
1964 that states in words that could not be clearer that “a
State shall not be immune under the Eleventh Amend-
ment of the Constitution of the United States from suit
No. 02-1730 3
in Federal court for a violation of section 504 of the Reha-
bilitation Act.”
If the government could not reasonably have been
expected to anticipate the constitutional challenge in the
appellees’ brief, then as a practical matter there was no
alternative to the government’s filing the two briefs at
different times and so the dual filing was proper. See
Fordyce v. City of Seattle, 55 F.3d 436, 441-42 (9th Cir.
1995); Mitchell v. Donovan, 290 F. Supp. 642, 645 (D. Minn.
1968), vacated on other grounds, 398 U.S. 427 (1970) (per
curiam). Analysis is complicated, however, by the fact
that the government should have anticipated that the ap-
pellees would raise the Eleventh Amendment as an alter-
native ground for upholding the district court’s decision,
thus inescapably presenting the issue of the constitution-
ality of the provision of the civil rights act that we just
quoted. For the appellees had moved to dismiss the case
on Eleventh Amendment grounds in the district court,
though apparently no one had mentioned section 2000d-
7(a)(1) and the district court had not, as 28 U.S.C. § 2403(a)
requires when a federal statute’s constitutionality is drawn
into question, notified the Justice Department. In these
circumstances, we do not think that the Department’s fail-
ure to intervene before the filing of the appellees’ brief
should operate as a forfeiture. The motion to strike is
therefore
DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-27-03