Did the Second Circuit really do that? Is the ADA retroactive

Since the changes are so radical between the Americans with Disabilities Act and the ADAAA in many ways, a question comes up as to whether those changes are retroactive to pending ADA cases where the facts occurred entirely before January of 2009. There are two U.S. Supreme Court cases out there that strongly suggest that the answer is no. Those cases are Landgraf v. USF Film Products, 511 U.S. 244 (1994) and Rivers v. Roadway Express Inc., 511 U.S. 298 (1994). In those cases, the United States Supreme Court said that statutes are not going to be retroactive unless Congress manifests a very clear intent to do so. Furthermore, Congress overruling judicial interpretation of a statute is also not going to be retroactive absent that same very clear intent. With respect to the ADAAA, you have a situation where Congress overruled judicial interpretation of the statute. Rivers strongly suggests that the ADAAA would not be retroactive since that clear intent is absent from the ADAAA. It isn’t even a close call and in fact case law as well as the EEOC in their final regulations have said that the ADAAA is not retroactive.

That brings us to the case of Hilton v. Wright, _ F.3d _, 2012 WL 752546 (Second Cir. March 9, 2012). In this case, Hilton, a former state prisoner infected with hepatitis C, sued the Associate Commissioner and Chief Medical Officer for the New York State Department correctional services as well as the New York State Department of correctional services for disability discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act alleging that an eligibility requirement for receiving hepatitis C treatment was without medical justification and unlawfully screened out former drug users that were in recovery. He also alleged violation of the eighth amendment prohibition on cruel and unusual punishment. The court remanded for further proceedings whether the eighth amendment was violated and whether sovereign immunity, under the 11th amendment, prevented the suit from going forward.

However, our concern is with Second Circuit’s analysis of the Americans with Disabilities Act. What is interesting about this case is that there appears to be nothing in the facts themselves to suggest that any of the facts occurred after January 1, 2009. Nevertheless, the court appeared to say that the lower court on remand only needed to consider whether the defendants regarded the plaintiff as having a mental or physical impairment and not evidence of how or to what degree the defendant believed the impairment affected the plaintiff (the ADAAA standards and not the standard prior to the ADAAA). All of this without extended analysis as to whether the ADA is retroactive (i.e., for example, no citation or discussion of the cases mentioned at the top of this blog entry).

All this said, did they really hold that the ADAAA is retroactive? It is hard to say. First, as mentioned previously, there is no extended analysis of Landgraf or Rivers. Second, the court in a footnote referred to current Department of Justice regulations that say a person could be regarded as having a disability if they were treated by a public entity as having a drug addiction but in fact did not. Third, the Second Circuit also told the lower court that they had to consider whether the defendant’s actions violated the eighth amendment and whether sovereign immunity prevented a lawsuit from going forward. In short, there are lots of possibilities on remand for the court to consider without having to deal with the issue of whether the ADA is retroactive.

This will be an interesting case to follow. To my knowledge, all of the cases to date with the exception of one for injunctive relief (this is a case for damages), have held that the ADAAA is not retroactive. The possible eighth amendment, cruel and unusual punishment claim, and 11th amendment sovereign immunity questions also bear watching.

3 comments on this post.
  1. Steve Bergstein:

    I caught this also.
    http://secondcircuitcivilrights.blogspot.com/2012/03/2d-circuit-quietly-applies-amended-ada.html

  2. William Goren:

    Steve,

    I actually got this idea from the link that you posted. When I read that link and then the case itself, I thought I could supply a different perspective. Welcome to the blog!

    Bill

  3. William Goren:

    http://www.ca7.uscourts.gov/tmp/GM0N0XAC.pdf

    the above case, Steffen v. Donahoe, which just came down from the Seventh Circuit on March 21, 2012 also talks about retroactivity of the ADAAA.

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