Response to supplemental authority (28J), State of West Virginia v. U.S. Department of the Treasury, No. 22-10168 (11th Cir.), Doc. 99 (January 10, 2023)

Summary

A letter dated January 10, 2023, from the U.S. Department of Justice Civil Division, Appellate Staff, to the Clerk of Court of the U.S. Court of Appeals for the Eleventh Circuit, Document 99, in West Virginia v. U.S. Department of the Treasury, No. 22-10168 (argued September 13, 2022). The letter responds to plaintiffs' letter concerning the recent en banc decision in Adams v. School Board of St. Johns County, No. 18-13592. It argues that Adams applied the Pennhurst clear-statement principle as a rule of statutory construction, and that the principle cannot support a ruling holding the Offset Provision categorically invalid. The letter is signed /s/ Daniel Winik.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

USCA11 Case: 22-10168        Document: 99      Date Filed: 01/10/2023      Page: 1 of 2


                                                  U.S. Department of Justice
                                                  Civil Division, Appellate Staff
                                                  950 Pennsylvania Ave. NW
                                                  Washington, DC 20530

                                                                       Tel: (202) 305-8849

                                                  January 10, 2023
 Via CM/ECF

 David J. Smith, Clerk of Court
 U.S. Court of Appeals for the Eleventh Circuit
 56 Forsyth Street, N.W.
 Atlanta, GA 30303

        RE:    West Virginia v. U.S. Department of the Treasury, No. 22-10168
               (argued September 13, 2022)

 Dear Mr. Smith:

         I write in response to plaintiffs’ letter concerning the recent en banc deci-
 sion in Adams v. School Board of St. Johns County, No. 18-13592. Far from support-
 ing plaintiffs’ invocation of the clear-statement principle articulated in Pennhurst
 State School and Hospital v. Halderman, 451 U.S. 1 (1981), Adams underscores why
 that principle cannot support a ruling that holds the Offset Provision categori-
 cally invalid and enjoins its enforcement under any circumstances.
        In Adams, this Court applied the Pennhurst clear-statement principle in the
 appropriate manner: as a rule of statutory construction, under which a statute is
 interpreted to impose only those conditions of which a State had notice. See Op.
 45-46. Judge Jill Pryor’s dissent likewise referred to the Pennhurst principle as a
 rule “of construction.” Op. 57 n.25.
        Here, because plaintiffs sued outside the context of any concrete dispute
 over the enforcement of the Offset Provision, there is no occasion for the Court
 to apply the Pennhurst principle in that typical way. Plaintiffs instead invoke the
 principle as a basis for holding the Offset Provision categorically unenforceable
 on the theory that its application in some contexts might be unclear. See, e.g., Br.
 25 (arguing that a condition is invalid if it “‘admits of two plausible interpreta-
 tions’”). But if that were how the principle worked, then the Court in Adams
 would have declared Title IX to be categorically unenforceable if the meaning
USCA11 Case: 22-10168       Document: 99     Date Filed: 01/10/2023     Page: 2 of 2


 of “the term ‘sex,’ as used in [the statute], were unclear” (Op. 44). No one would
 think that outcome proper.
         If a concrete dispute over the application of the Offset Provision ever
 arises, then a court can properly apply the Pennhurst principle in the way that
 Adams applies it: as a canon of construction in resolving that dispute. But we
 are aware of no court that has ever applied the principle to hold unconstitutional
 a funding condition other than the one at issue here.
                                            Sincerely,

                                            /s/ Daniel Winik
                                            Daniel Winik


 cc:   All counsel (via CM/ECF)


File and source

File

99-response-to-supplemental-authority-28j-filed-by-appellants-i.pdf

Size

75,952 bytes

SHA-256

33a095abbd2201890158f14d64b6810157fa4363f601a0c94196115b82b00a28

Our copy

99-response-to-supplemental-authority-28j-filed-by-appellants-i.pdf

Original

storage.courtlistener.com