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concluding that "DRF has associational standing" to bring Title II claims on its constituents' behalf
Summary of this case from Florida State Conference of NAACP v. LeeOpinion
Case No. 4:20-cv-351-AW-MAF
2021-03-12
Michael YELAPI, et al., Plaintiffs, v. Ronald DESANTIS, in his official capacity as Governor of Florida, et al., Defendants.
Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiffs Michael Yelapi, Patricia Sanchez, Jaime Mariona, Julia Michalka. Ann Marie Cintron-Siegel, Disability Rights Florida, Hollywood, FL, Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Disability Rights Florida. Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Carlos Aponte. Blaine H. Winship, Office of the Attorney General, Nicholas Allen Primrose, Executive Office of the Governor, Tallahassee, FL, Colleen M. Ernst, Office of General Counsel Executive Office of the Governor, for Defendant Ronald Desantis. Blaine H. Winship, Office of the Attorney General, Nicholas Allen Primrose, Executive Office of the Governor, Tallahassee, FL, for Defendant Executive Office of the Governor. Miriam Rebekkah Coles, Henry Buchanan Hudson etc., Tallahassee, FL, for Defendants Florida State University Board of Trustees, John Thrasher.
Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiffs Michael Yelapi, Patricia Sanchez, Jaime Mariona, Julia Michalka.
Ann Marie Cintron-Siegel, Disability Rights Florida, Hollywood, FL, Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Disability Rights Florida.
Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Carlos Aponte.
Blaine H. Winship, Office of the Attorney General, Nicholas Allen Primrose, Executive Office of the Governor, Tallahassee, FL, Colleen M. Ernst, Office of General Counsel Executive Office of the Governor, for Defendant Ronald Desantis.
Blaine H. Winship, Office of the Attorney General, Nicholas Allen Primrose, Executive Office of the Governor, Tallahassee, FL, for Defendant Executive Office of the Governor.
Miriam Rebekkah Coles, Henry Buchanan Hudson etc., Tallahassee, FL, for Defendants Florida State University Board of Trustees, John Thrasher.
ORDER ON MOTIONS TO DISMISS AND STRIKE
Allen Winsor, United States District Judge Disability Rights Florida (DRF) and several of its deaf constituents sued Governor Ron DeSantis and the Executive Office of the Governor, seeking an injunction requiring an American Sign Language (ASL) interpreter at critical press briefings. ECF No. 1. After they unsuccessfully sought preliminary injunctive relief, they filed their First Amended Complaint. ECF No. 35 (FAC).
Recognizing that there are many terms to describe hearing-related disabilities, Plaintiffs use the term "deaf" in their Complaint "for brevity, with no intent of offending or excluding those who prefer, require, and use other terms." FAC at 2 n.2. I will likewise use the term in this order.
The new complaint added a plaintiff (Carlos Aponte) and two defendants (the Florida State University Board of Trustees and FSU President John Thrasher). It presents claims under Title II of the ADA and § 504 of the Rehabilitation Act (RA), and it seeks declaratory and injunctive relief. More specifically, it seeks an order requiring Defendants to provide and broadcast an in-frame ASL interpreter at the Governor's press briefings related to COVID and hurricanes. Id. at 38-39. This would include a directive that The Florida Channel, which FSU operates, add an ASL interpreter remotely if none is provided locally. Id. at 39-40.
For simplicity, this order will refer to Governor DeSantis and the Executive Office of the Governor (EOG) collectively as "the Governor." It will refer to the FSU Board of Trustees and President Thrasher (sued in his official capacity) collectively as "FSU."
The Governor and FSU moved to dismiss, arguing that the court lacks jurisdiction, that they are immune from suit, and that Plaintiffs have not stated claims under the ADA or RA. ECF Nos. 44, 49. This order denies the motions to dismiss. It also denies Plaintiffs’ motion to strike two declarations attached to the Governor's motion.
I. MOTION TO STRIKE
I will first address Plaintiffs’ motion to strike the Governor's declarations. ECF No. 47. To begin, all seem to agree that the declarations cannot be considered as to the Rule 12(b)(6) challenge, so I will not consider them as to that. And I will also not consider them as to Defendants’ standing arguments.
At this stage, Plaintiffs only must allege facts that would support standing. See Tsao v. Captiva MVP Rest. Partners, LLC , 986 F.3d 1332, 1337 (11th Cir. 2021) ("At the pleading stage, general factual allegations of injury are enough." (marks and citation omitted)); see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting that a plaintiff's burden to demonstrate standing changes "with the manner and degree of evidence required at the successive stages of the litigation"). As I conclude below, Plaintiffs have sufficiently alleged facts to support standing. Now is not the time to determine if those facts are true.
That leaves the issue of immunity. As discussed below, § 504 of the RA applies only to a "program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a) ; see also McMullen v. Wakulla Cnty. Bd. of Cnty. Comm'rs , 650 F. App'x 703, 705 (11th Cir. 2016) (per curiam). Defendants contend they do not receive federal funds that would make § 504 applicable. ECF No. 44 at 17-20; ECF No. 49 at 5. As support, the Governor attaches a declaration from the EOG's Policy Director, Chris Spencer, which says the Division of Emergency Management (DEM) receives federal funding, but it does not flow through the EOG. ECF No. 44 at 40-41, ¶¶ 3-6.
The Governor relies on the Spencer declaration to disprove Plaintiffs’ allegations that the EOG receives federal funds. Compare id. at 18 with FAC ¶¶ 60, 67, 243. I therefore cannot agree with Plaintiffs’ contention that the Governor presents only a facial challenge. ECF No. 47 at 2-3; cf. Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) (noting that jurisdictional challenges can be facial or factual and that factual arguments can be resolved with evidence outside the pleadings); see also Carmichael v. Kellogg, Brown & Root Serv. , 572 F.3d 1271, 1279 (11th Cir. 2009). This means the Spencer declaration is properly considered, so Plaintiffs’ motion to strike is denied as to it. As explained below, though, Plaintiffs should have an opportunity for jurisdictional discovery before the federal-funding issue is decided.
The other declaration—submitted at the preliminary injunction stage and resubmitted now—goes only to the Rule 12(b)(6) issues, so it will not be considered. But I decline to strike it.
II. FACTS
The facts come from the complaint. For purposes of the Rule 12(b)(6) challenge and any facial jurisdictional challenge, these facts are accepted as true. Lawrence , 919 F.2d at 1529.
DRF is an advocate for disabled Floridians, including deaf Floridians who rely on ASL. FAC ¶¶ 19, 44-49, 212-14. The Governor routinely holds press conferences about emergencies like hurricanes and COVID-19. Id. ¶¶ 2, 7-8, 10, 24, 74-77, 81-82. These press conferences sometimes include an ASL interpreter; they sometimes do not. Id. ¶¶ 26, 84, 86, 97-99, 101. Some television networks add closed captioning when they broadcast the press conferences; others do not. Id. ¶ 86.
FSU operates—and the State funds—The Florida Channel, which broadcasts the Governor's briefings. Id. ¶¶ 9, 11, 25-26, 71-72, 78-79, 101-02. Its broadcasts do not always include an ASL interpreter. See id.
Defendants do not control how (or whether) private news networks broadcast and display the Governor's press conferences. See id. ¶¶ 80, 86. This includes whether networks add closed captioning or display an interpreter when one is provided. See id. ¶ 86.
DRF's constituents complain that they cannot understand the Governor's briefings without an ASL interpreter. Id. ¶¶ 89, 103, 215-19. These constituents, including individual Plaintiffs, fear being uninformed about critical information, like COVID-related curfews, business closures, and testing locations. See id. ¶¶ 122-27, 142, 146, 167-68, 170-71, 173, 185-86, 191-94, 211, 219-20.
Closed captioning is not always an effective means of communicating with those who are deaf. See, e.g., id. ¶¶ 109-10, 113, 138, 163-64, 186, 206. This is because fluency in ASL does not necessarily translate into the ability to read and understand English. See id. ¶¶ 13-16, 88. The grammar and vocabulary for ASL are distinct from English, and ASL involves expressive movements not found in written communications. Id. ¶ 13. For example, Aponte, a deaf Tampa resident, "does not read English" and "therefore cannot read closed captioning." Id. ¶¶ 42, 206. His primary language is ASL, and he only communicates with ASL. Id. ¶¶ 18, 43, 207.
Like Aponte, other individual Plaintiffs use ASL as their primary language, and the same is true for many of DRF's deaf constituents. Id. ¶¶ 18-19, 214-15. Without televised ASL interpretation, they cannot understand the Governor's briefings. Id. ¶¶ 11, 29, 217-19. They say an injunction requiring ASL interpretation will fix that. Id. at 38-39.
III. ANALYSIS
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, § 504 of the RA provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).
The ADA and RA have the same substantive requirements, see Cash v. Smith , 231 F.3d 1301, 1305 & n.2 (11th Cir. 2000), Badillo v. Thorpe , 158 F. App'x 208, 214 (11th Cir. 2005), so I will consider them together except as to immunity issues.
Public entities must "make reasonable modifications" to their practices and procedures when "necessary to avoid discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7)(i). This includes "tak[ing] appropriate steps to ensure that communications with ... members of the public ... with disabilities are as effective as communications with others. " Id. § 35.160(a)(1) (emphasis added). The "appropriate steps" include "furnish[ing] appropriate auxiliary aids and services where necessary to afford individuals with disabilities ... an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity." Id. § 35.160(b)(1). An ASL interpreter is an appropriate auxiliary aid, but so is closed captioning. Id. § 35.104(1). The key is that communications must be equally effective, although not always identical. See, e.g. , 45 C.F.R. § 84.4(b)(2) ; 6 C.F.R. § 15.30(b)(2). Finally, the law does not require modifications if they "would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.164. As to this defense, the public entity bears the burden of proof. Id.
In moving to dismiss, Defendants argue lack of jurisdiction, Eleventh Amendment immunity, and failure to state a claim. See ECF Nos. 44, 49. FSU also argues that the official capacity claim against President Thrasher is improper and redundant. ECF No. 49 at 24-25. I address the arguments in turn.
A. Plaintiffs Have Alleged Enough to Support Standing.
Defendants first argue standing, contending that Plaintiffs have not been injured and that even if they have, their injury is neither traceable to nor redressable by Defendants. ECF No. 44 at 2-10; ECF No. 49 at 9-16.
FSU also contests DRF's associational standing and says Plaintiffs Yelapi, Sanchez, and Michalka "do not have standing to bring claims in this action on behalf of their unidentified deaf clients." ECF No. 49 at 8-9. Starting with the latter, I do not find that the individual Plaintiffs purport to bring claims on behalf of their deaf clients. As to the former, I conclude DRF has associational standing because its members have standing and this case is germane to DRF's purpose. See Doe v. Stincer , 175 F.3d 879, 882 (11th Cir. 1999) (citing Hunt v. Washington State Apple Advert. Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), and Food & Commercial Workers Union v. Brown Grp., Inc. , 517 U.S. 544, 552-53, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) ). Moreover, once one plaintiff has standing to pursue injunctive or declaratory relief, it is not necessary to determine if the other plaintiffs have standing. See Am. C.L. Union of Ga. v. Rabun Cnty. Chamber of Com., Inc. , 698 F.2d 1098, 1108-09 (11th Cir. 1983) (abrogated on other grounds) (citing Watt v. Energy Action Educ. Found. , 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981) ).
Much of Defendants’ argument relies on the preliminary injunction order. But the standard here is different. Plaintiffs bear only the "burden of alleging facts that plausibly establish their standing." Trichell v. Midland Credit Mgmt., Inc. , 964 F.3d 990, 996 (11th Cir. 2020) ; see also Tsao , 986 F.3d at 1337. This is why I cannot consider the Governor's declarations on this topic.
1. Plaintiffs Have Alleged an Injury in Fact.
Standing requires an "injury in fact"—"an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (quotations omitted). The Governor argues that Plaintiffs have not alleged an injury because, though they lack access to the briefings, they can get the same information elsewhere. ECF No. 44 at 4. The Governor points to Plaintiffs’ allegations showing they in fact find relevant information from other sources. Id. at 5-6. The Governor thus contends that no ASL interpreter is necessary for effective communication. Id.
FSU likewise argues that while Plaintiffs have alleged "difficulty understanding some parts of the Governor's press briefings," they have not shown an inability to obtain information about COVID. ECF No. 49 at 10. FSU contends that "closed captioning is a reasonable and legally sufficient accommodation." Id. at 12. It also posits that perhaps hearing members of the public are equally uninformed following the Governor's briefings and they too find themselves researching information after a press conference. Id. at 11-12.
At bottom, though, these arguments are not about whether Plaintiffs have alleged a concrete and particularized injury. Instead, Defendants challenge the degree of Plaintiffs’ injury in a highly fact-specific context. While the Governor points to cases finding that ASL is not always required to communicate effectively with deaf plaintiffs (ECF No. 44 at 6 (citing ECF No. 30 at 17)), none came at the motion to dismiss stage. Similarly, FSU argues that Plaintiffs have not shown "they lack meaningful access to the information provided during the Governor's press briefings," but the case it relies on decided the issue after discovery at summary judgment. ECF No. 49 at 12. (citing Ganstine v. Sec'y, Fla. Dep't of Corr. , 502 F. App'x 905, 910 (11th Cir. 2012) ).
As the Eleventh Circuit recently reiterated, whether the ADA or RA require an ASL interpreter is " ‘inherently fact-intensive’ and, as a result, ‘an effective-communication claim often presents questions of fact precluding summary judgment.’ " Silva v. Baptist Health S. Fla., Inc. ("Silva II "), 838 Fed.Appx. 376, 379 (11th Cir. 2020) (per curiam) (quoting Silva v. Baptist Health S. Fla., Inc. ("Silva I "), 856 F.3d 824, 836 (11th Cir. 2017) ). Moreover, as Plaintiffs explain (ECF No. 46 at 11-12), Silva I "reject[ed] a requirement that a disabled [plaintiff] explain exactly what was poorly communicated when that [plaintiff] could not know that information precisely because of the disability," finding that it would be "exceedingly difficult for a deaf [plaintiff] to recount a conversation he or she could not hear." 856 F.3d at 835.
Plaintiffs have alleged facts showing a concrete and particularized injury that actually occurred and that will likely continue. Plaintiffs cannot understand the Governor's briefings. FAC ¶¶ 29, 108, 121-27, 136, 140-42, 159, 166, 168, 170-71, 173-75, 178, 185, 191-94, 198, 210-11, 216-18. This is enough to show an injury in fact.
2. Plaintiffs Have Alleged That Their Injury Is Traceable to and Redressable by Defendants.
Next, the injury must be "fairly traceable to" Defendants and "likely" to be "redressed by a favorable decision." See Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130 (cleaned up). These considerations factored into the denial of the preliminary injunction motion. ECF No. 30 at 11-14. At that stage, Plaintiffs had to prove a likelihood that their injury was traceable to and redressable by the Governor; here, they just have to allege those facts plausibly as to Defendants. They have done that.
Plaintiffs have alleged that The Florida Channel "airs all of Governor DeSantis’ press briefings concerning COVID-19 and Hurricanes." Id. ¶ 9 (emphasis added). That outlet is, according to the complaint, "Florida's primary source for live, unedited coverage of the Governor." Id. ¶ 72. Before, there was not enough evidence to conclude that private television networks were likely to cover all the Governor's briefings or display an ASL interpreter simply because the Governor provided one. ECF No. 30 at 13. Now, the allegations show it is at least plausible that Plaintiffs’ injury will be redressed by an injunction. Therefore, I conclude that Plaintiffs have alleged enough to show traceability and redressability. At this stage, Plaintiffs have alleged enough to show standing.
Defendants also argue that they cannot redress Plaintiffs’ injury because it would be too expensive, and proposed solutions are difficult and may cause unacceptable delays in video transmission. ECF No. 44 at 8-9; ECF No. 49 at 16 (calling the provision of "picture-in-picture ASL interpretation in [The Florida Channel's] broadcasts" a "nearly impossible feat"). Whether the modification Plaintiffs seek amounts to a "fundamental alteration" of Defendants’ program or service, and whether it creates an "undue financial and administrative burden," are defenses on which Defendants bear the evidentiary burden. See 28 C.F.R. § 35.164.
B. Plaintiffs Have Alleged Enough to Overcome Eleventh Amendment Immunity.
1. RA Claim
As the parties agree, there is no Eleventh Amendment immunity when plaintiffs are "subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The question here is whether the relevant entities receive federal funds that waive their immunity.
Plaintiffs have alleged that both the Governor and FSU receive federal funding. FAC ¶¶ 243, 248-49. The Governor contends that although the DEM receives federal funds and "is operationally under the auspices of EOG," this does not waive the EOG's immunity. ECF No. 44 at 17-20. This presents a question of whether immunity is waived by a trickle-up theory. Conversely, FSU contends that its receipt of federal funds does not amount to a waiver by The Florida Channel, which FSU operates with funding from the Florida Legislature. ECF No. 49 at 5. This presents a question of whether there is a trickle-down waiver.
McMullen includes an in-depth analysis of these issues in the context of whether federal funds to a fire department trickled up to waive the county's immunity. 650 F. App'x at 706-09. There, discovery revealed that the department in fact received no federal funds, so the county's immunity remained intact. Id. at 708-09. McMullen , which addressed the issue at summary judgment, shows this is (or can be) a fact-intensive inquiry. See id. at 704.
Here, I find that Plaintiffs have sufficiently alleged Defendants’ receipt of federal funds. Like in National Association of the Deaf v. Florida ("NAD "), 980 F.3d 763 (11th Cir. 2020), the best approach is to resolve this issue on summary judgment after jurisdictional discovery. See id. at 775-76. In NAD , the plaintiffs alleged that the Florida Legislature received federal funds. Id. The Legislature responded with an affidavit saying this wasn't true. Id. The Eleventh Circuit found that the court did not abuse its discretion it allowing discovery because "[i]n the Eleventh Amendment context—where defendants often raise factual challenges on sovereign immunity grounds—a district court may order limited discovery before deciding whether sovereign immunity requires dismissal." Id. at 775 ; see also Eaton v. Dorchester Dev., Inc. , 692 F.2d 727, 729-30 (11th Cir. 1982). I find this appropriate here.
There has been discovery already. If the facts support it, Defendants may reassert the defense later.
Indeed, Plaintiffs can only know so much about what federal funding the EOG receives and does not receive and how it flows or does not flow through the EOG, and its agencies and departments. The same is true as to federal funding FSU receives and whether it flows to The Florida Channel in a manner that waives immunity. Moreover, because (as explained next) Plaintiffs’ ADA claim survives, allowing discovery on their RA claim should not add a meaningful burden Defendants would not otherwise face. 2. ADA Claim
In enacting the ADA, Congress intended to abrogate states’ Eleventh Amendment immunity. 42 U.S.C. § 12202. Defendants challenge the validity of this abrogation. ECF No. 44 at 12-17; ECF No. 49 at 4. I conclude that there was a valid abrogation. Alternatively, even if there were no valid abrogation, Plaintiffs can proceed under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
For Congress's abrogation to be valid, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores , 521 U.S. 507, 520, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). There is a three-step test for determining whether there is.
First, we identify which right or rights Congress sought to enforce when it enacted the ADA. Second, we look to whether there was a history of unconstitutional discrimination to support Congress's determination that prophylactic legislation was necessary. Third, we determine whether Title II is an appropriate response to this history and pattern of unequal treatment.
NAD , 980 F.3d at 771 (citations and quotations omitted).
In NAD , a deaf plaintiff sought an injunction requiring closed captioning for broadcasts and recordings of Florida legislative proceedings. Id. at 768. First, the court identified the right at issue—participation in the democratic process. Id. at 771-72. Assuming that this right was not fundamental, the court nonetheless found that its protection could support valid abrogation, relying on prior Circuit precedent. Id. In Association for Disabled Americans, Inc. v. Florida International University ("FIU "), 405 F.3d 954 (11th Cir. 2005), the court found that "the constitutional right to equality in education, though not fundamental, is vital to the future success of our society," and supported abrogation. Id. at 957-58. Looking to FIU , the NAD court found it "implausible that Congress could validly abrogate sovereign immunity to protect the right of students with disabilities to get an education but could not do the same to directly enable those students to participate in the democratic process." NAD , 980 F.3d at 772.
Second, the NAD court looked to Tennessee v. Lane , 541 U.S. 509, 531, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), and FIU to find that there was a history of discrimination in public services concerning "access to public legislative information relevant to voting." NAD , 980 F.3d at 773-74. Third, the court found that Title II was an appropriate response to this history of discrimination. Specifically, "[w]hen it enacted Title II, Congress was confronted with evidence that deaf people often cannot access government meetings either due to a lack of interpreters or other necessary accessibility features." NAD , 980 F.3d at 773 (citing Bd. of Trustees of Univ. of Ala. v. Garrett , 531 U.S. 356, 391-424, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (App. C. to opinion of Breyer, J., dissenting)).
As applied here, the Governor says the right implicated—access to information—is not fundamental. ECF No. 44 at 11. But even so, NAD and FIU show that there can be valid abrogation without a fundamental right at stake. And if access to legislative information is enough to support abrogation—as the court found in NAD , see 980 F.3d at 772-74 —then access to information from the head of Florida's executive branch would be enough too.
Alternatively, even if there were no valid abrogation, the Eleventh Amendment would not bar Plaintiffs’ pursuit of prospective injunctive relief under Ex parte Young. Cf. Verizon Md., Inc. v. Pub. Serv. Comm'n of Md. , 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) ("Whether the Commission waived its immunity is another question we need not decide, because ... even absent waiver, Verizon may proceed against the individual commissioners in their official capacities, pursuant to the doctrine of Ex parteYoung. "). The Governor argues otherwise. ECF No. 44 at 13-14 (citing Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), and Idaho v. Coeur d'Alene Tribe of Idaho , 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) ). But the cases he relies on are distinct from this one. In Seminole Tribe , the Supreme Court found that Congress did not intend for Ex parte Young to apply because the Indian Gaming Regulatory Act "prescribed a detailed remedial scheme for the enforcement against a State." Seminole Tribe , 517 U.S. at 74-75, 116 S.Ct. 1114. In Coeur d'Alene , the Court found an exception when the suit was the "functional equivalent of a quiet title action which implicates special sovereignty interests." 521 U.S. at 281, 117 S.Ct. 2028. This case does not fall into either of those exceptions.
In this case, the "court need only conduct a ‘straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ " Verizon , 535 U.S. at 645, 122 S.Ct. 1753 (cleaned up) (quoting Coeur d'Alene , 521 U.S. at 296, 117 S.Ct. 2028 ). The complaint does. Thus, it is unsurprising that other courts have applied Ex parte Young in Title II ADA cases. See, e.g., NAD , 980 F.3d at 774 ; Henrietta D. v. Bloomberg , 331 F.3d 261, 288-89 (2d Cir. 2003) ("In our view, Seminole Tribe does not bar Ex parte Young relief under Title II against a state official in her official capacity."); Randolph v. Rodgers , 253 F.3d 342, 345-48 (8th Cir. 2001) (allowing plaintiff to pursue injunctive relief against prison official under Title II pursuant to Ex parteYoung ); see also Garrett , 531 U.S. at 374 n.9, 121 S.Ct. 955 (noting that government actors are still subject to suit for injunctive relief under Title I pursuant to Ex parteYoung ). Accordingly, Plaintiffs case may proceed under Ex parte Young.
For this reason, I do not agree with FSU's contention that President Thrasher should be dismissed because the claim against him is redundant and contrary to Florida law. ECF No. 49 at 24-25. The cases FSU relies upon do not involve a plaintiff seeking Ex parte Young injunctive relief. Naming President Thrasher allows Plaintiffs to secure an injunction under Ex parte Young , regardless of whether FSU is otherwise immune from suit.
President Thrasher is a party in NAD , where the plaintiffs are also seeking an injunction against The Florida Channel. NAD , 980 F.3d at 768.
C. Plaintiffs Have Stated Claims Under the ADA and RA.
On the merits, Defendants contend Plaintiffs have not stated plausible claims. I find that Plaintiffs have. Many of Defendants’ challenges here are intertwined with the standing issues already addressed, such as, costs and burdens, whether an ASL interpreter is required, and whether closed captioning is enough.
There is no dispute, and the cases show, that an ASL interpreter is not always required. The question is whether this is one of those cases where it is. Whether Defendants’ communications with Plaintiffs are as effective as their communications with others, and whether the modification sought is reasonable, cannot be decided at the motion to dismiss stage.
In addition, while the preliminary injunction order raised concerns about the specific form an injunction might take (ECF No. 30 at 24-25), that alone is not reason enough to grant Defendants’ motions. Indeed, other courts have entered injunctive relief in similar cases, suggesting it is at least possible (even if those cases are distinct in some respects). See Martinez v. Cuomo , 459 F. Supp. 3d 517 (S.D.N.Y. 2020) ; Nat'l Ass'n of the Deaf v. Trump , 486 F. Supp. 3d 45 (D.D.C. 2020). Moreover, Plaintiffs’ prayer for relief is more refined and detailed than before. Compare ECF No. 1 at 25-26 (seeking "live televised in frame ASL interpretation at all briefings designed to reach residents of Florida"), with FAC at 38-40 (seeking "televised in frame ASL interpretation at all briefings designed to reach residents of Florida regarding COVID-19 and/or impending hurricanes ....").
IV. CONCLUSION
Accordingly, the Governor's motion to dismiss (ECF No. 44) and FSU's motion to dismiss (ECF No. 49) are DENIED. Defendants must answer within 14 days. Plaintiffs’ motion to strike (ECF No. 47) is DENIED.
The clerk will set a telephonic status conference.
SO ORDERED on March 12, 2021.