                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    __________
                               Nos. 01-1038, 01-1114
                                    __________

Linda R. Gibson; Larry Douglas Brown *
                                     *
      Appellants,                    *
                                     * Appeal from the United States
                                     * District Court for the Eastern
                                     * District of Arkansas
      v.                             *
                                     *
Arkansas Department of               *
Correction; Thomas Mars              *
                                     *
      Appellees.                     *
                                 __________

                              Submitted: June 13, 2001

                  Filed: September 12, 2001 (Corrected 10/30/01)
                                   __________

Before LOKEN, MORRIS SHEPPARD ARNOLD, and HALL,1 Circuit Judges.
                                    __________
HALL, Circuit Judge.
      This consolidated appeal requires us to determine whether state officials can
be sued in their official capacity for injunctive relief under Title I of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Linda Gibson works for
the Arkansas Department of Correction. She alleges that her employer discriminated
against her because of an alleged disability arising from an on-the-job injury. Larry


      1
      The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
Brown suffered back injuries while working for the Arkansas State Police. He is
suing his former employer for failure to accommodate his alleged disability. Neither
district court examined the merits of either case, instead concluding that Congress did
not intend for such suits when it created the ADA’s remedial scheme. In light of the
Supreme Court's recent decision in Board of Trustees of the University of Alabama
v. Garrett, 121 S. Ct. 955 (2001), we conclude that the ADA's remedial scheme is not
comprehensive and reverse.

                                            I.
       In Ex parte Young, 209 U.S. 123, 155-56 (1908), the Supreme Court held that
when a state official acts in violation of the Constitution or federal law, he is acting
ultra vires and is no longer entitled to the State’s immunity from suit. In effect, Ex
parte Young creates a legal fiction: a state official stops being a state official when
he does something contrary to federal law. The Ex parte Young doctrine permits only
prospective injunctive relief; no money damages are available. See Edelman v.
Jordan, 415 U.S. 651, 664, 667-68 (1974).

       In Garrett, the Supreme Court held that state employees could not sue their
employers for money damages under the ADA; the states and their agencies are
immune to such suits under the Eleventh Amendment. See Garrett, 121 S. Ct. at 967-
68. But the Court did not hold the same for suits against individual defendants in
their “official” state capacities. In fact, even though it was not part of the holding of
the case, the Court indicated that individuals could sue state officials for injunctive
relief under the ADA:

      Our holding here that Congress did not validly abrogate the States’
      sovereign immunity from suit by private individuals for money damages
      under Title I does not mean that persons with disabilities have no federal
      recourse against discrimination. Title I of the ADA still prescribes
      standards applicable to the States. Those standards can be enforced by
      the United States in actions for money damages, as well as private

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      individuals in actions for injunctive relief under Ex parte Young, 209
      U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). In addition, state laws
      protecting the rights of persons with disabilities in employment and
      other aspects of life provide independent avenues of redress.

Id. at 968 n.9.
       The appellees contend that the above statement is mere dictum and this court
should rule that suits under Ex parte Young are not available under the ADA. They
argue that the statement conflicts with Supreme Court precedent.2 We disagree.

       First, the Garrett footnote is not contrary to Supreme Court precedent.
Plaintiffs seek only prospective injunctive relief. The Supreme Court recently
explained that when the relief sought is prospective injunctive relief, the request “is
ordinarily sufficient to invoke the Young fiction.” Idaho v. Coeur d’Alene Tribe, 521
U.S. 261, 281 (1997). The Eleventh Amendment is not a bar to “federal jurisdiction
over a suit against a state official when that suit seeks only prospective injunctive
relief in order to ‘end a continuing violation of federal law.’” Seminole Tribe of
Florida v. Florida, 517 U.S. 44 (1996).

      Second, the main case relied on by the State, Seminole Tribe, dealt with a
Congressional act markedly different from the ADA: the Indian Gaming Regulatory
Act (“IGRA”). In Seminole Tribe, an Indian tribe sued the governor of Florida under
IGRA. The Supreme Court held that Ex parte Young did not apply to the tribe’s suit


      2
        Appellees also contend that a decision to permit Ex parte Young suits to
enforce the ADA would clash with our own precedent in Alsbrook v. City of
Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc). In Alsbrook, we held
that the ADA’s remedial scheme prevents a plaintiff from maintaining a § 1983
action against state officials. But Alsbrook is not persuasive here. In Alsbrook,
we did not address whether an action under Ex parte Young was available because
the plaintiff’s claim for injunctive relief was moot. See id. at 1003 n.5. Moreover,
our decision in Alsbrook predated the Supreme Court’s decision in Garrett.
                                          3
against the governor because Congress did not intend to authorize federal jurisdiction
under Ex parte Young to enforce IGRA. See Seminole Tribe, 517 U.S. at 75 n.17 &
76.

        IGRA provides that certain forms of gaming can be conducted on Indian lands
only if the gaming complies with a compact entered into by the Indian tribe and the
State. See 25 U.S.C. § 2710(d)(1). Upon receiving a request from the Indian tribe
to enter into such a compact, “the State shall negotiate with the Indian tribe in good
faith to enter into such a compact.” 25 U.S.C. § 2710(d)(3)(A). IGRA authorizes the
tribe to sue the State in federal district court if the State does not negotiate, but the
district court’s remedial authority is severely limited. If the court determines that the
State failed to negotiate in good faith, it can only “order the State and Indian Tribe
to conclude such a compact within a 60-day period.” If the State still fails to
negotiate, the district court can only order the appointment of a mediator. Finally, if
the mediator cannot bring the sides to an agreement, IGRA requires the mediator to
inform the Secretary of the Interior, who is empowered to authorize gaming even in
the absence of a compact. See 25 U.S.C. § 2710(d)(7)(B).

       In holding that the Ex parte Young doctrine was not available to enforce IGRA,
the Supreme Court explained: “[W]here Congress has prescribed a detailed remedial
scheme for the enforcement against a State of a statutorily created right, a court
should hesitate before casting aside those limitations and permitting an action against
a state officer based upon Ex parte Young.” Id. at 74. As evidence of this remedial
scheme that prevented the application of Ex parte Young, the Court cited the statute’s
limiting of the district court’s remedial authority to: 1) ordering the State and the tribe
to negotiate a compact within 60 days; 2) if that fails, requiring the parties to submit
proposals to a mediator. See id. The Court opined that allowing actions against an
official under Ex parte Young would greatly expand the remedial powers available,
allowing a district court to issue contempt sanctions against state officials that
Congress did not intend to authorize. See id. at 75. We have already commented that

                                            4
Seminole Tribe holds the Ex parte Young doctrine inapplicable in IGRA cases
because IGRA revealed a Congressional intent to prescribe a limited remedial
scheme. See Santee Sioux Tribe of Nebraska v. State of Nebraska, 121 F.3d 427, 432
(8th Cir. 1997).

        There are significant differences between the ADA and IGRA that make use
of the Ex parte Young doctrine appropriate for one and not for the other. First, there
are several enforcement mechanisms for Titles I and II of the ADA. The ADA makes
all the remedies of Title VII of the Civil Rights Act of 1964 applicable to ADA Title
I plaintiffs. See 1990 U.S.C.A.A.N. 445, 472. This means that remedies such as
equitable orders and contempt proceedings are possible. Equitable relief such as
injunctions are also available to enforce ADA rights. Thus, the ADA stands in stark
contrast to the IGRA, which only permits the district court to order 60 days of
negotiations and then call in a mediator. The Supreme Court’s concern that an Ex
parte Young suit would permit a plaintiff to seek much stronger remedies than those
specified in IGRA itself does not apply to an ADA suit. See id. at 475 (stating that
the “full panoply” of remedies are available under the Rehabilitation Act and
therefore Title II).

       Second, in drafting the ADA, Congress chose to use existing civil rights
enforcement mechanisms. See id. at 472; Pona v. Cecil Whittaker’s, Inc., 155 F.3d
1034, 1038 (8th Cir. 1998) (“Congress has provided [Title II of the ADA] with
detailed means of enforcement that it imported from Title VII of the Civil Rights Act
of 1964 . . . .”). Congress knew that civil rights laws outlawing discrimination on the
basis of race and gender had been enforced through district court orders compelling
state officials to perform their statutory obligations. It only makes sense to infer that
Congress intended for the same orders to issue against state officials in the ADA
context. The State argues that the ADA requirement that charges of discrimination
first be filed with the EEOC is evidence of a “detailed” remedial scheme meant to
exclude use of Ex parte Young. But this requirement was borrowed from Title VII,

                                           5
so it hardly speaks to Congressional intent to create an exclusive system separate
from the traditional scope of judicial power.

       Third, enforcement of ADA provisions can normally be accomplished by a
single official. For example, in this case, the director of the Arkansas State Police can
simply be instructed not to apply a discriminatory policy. In contrast, IGRA involved
complex negotiations with Indian tribes. As the Court noted, a state official cannot
bind her state to a gaming compact. Instead, a governor who negotiated with an
Indian tribe needs the state legislature to vote to accept the compact she negotiated.
See Seminole Tribe, 517 U.S. at 75. Thus, the ADA is a more suitable candidate than
IGRA for Ex parte Young suits designed to change the behavior of specific
government officials.

      Finally, it made some sense for the Seminole Tribe court to be reluctant to
second guess Congress’s wishes in the complicated field of negotiations between two
sovereigns. The Court was apprehensive about letting district courts structure their
own relief against state governors who refused to negotiate with an Indian tribe. In
contrast, there is no reason to think that Congress intended to limit the availability of
prospective relief against states who continued to discriminate against the disabled.
The ADA statute presumes enforcement through equitable orders issued by district
courts that target discriminatory conduct. See Utilla v. City of Memphis, 40 F.
Supp.2d 968, 977 (W.D. Tenn. 1999) (“Congress has not created a remedial scheme
designed for the exclusive enforcement of Plaintiffs’ rights under the ADA or
Rehabilitation Act. Quite to the contrary, Congress authorized suits like the present
one as an appropriate means to vindicate the rights granted under the ADA and
Rehabilitation Act.”).

      Given these differences and the unambiguous language of the Garrett footnote,
we conclude that private individuals can sue state officials for injunctive relief under
the ADA by using Ex parte Young.

                                           6
REVERSED.

A true copy.

Attest:

      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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