AARP filed a brief with the U.S. Supreme Court asking the Court to ensure that the Virginia Office of Protection and Advocacy (VOPA) has full access to federal court in order to carry out its duty to investigate abuse and neglect of older people and people with disabilities who reside in nursing homes and similar institutions.
VOPA is a federally funded agency organized under federal law and charged with protecting and advocating for the rights of persons with disabilities, regardless of age, residing in facilities and in the community. This includes investigating instances of abuse and neglect in both state and private facilities. VOPA is organized as an independent state agency, and Virginia is one of only eight states and territories that have in that way elected to comply with federal laws protecting the rights of people in institutions. The remaining state P&A's are structured as private nonprofit entities. Each state and territory must have such an agency in order to qualify for the significant federal funds available for disabilities programs.
During an investigation of possible abuse and neglect of people with disabilities, VOPA sought records from officials of various Virginia state agencies. The state refused to comply. VOPA sued the officials in federal court, seeking to have the court enter an injunction ordering the state officials to release the records. The state countered with a constitutional defense — invoking its 11th Amendment "sovereign immunity" rights under the U.S. Constitution. Sovereign immunity not only protects states from liability under many federal laws, but in some limited cases also protects states from having to appear in federal court at all. The state argued that VOPA's suit belonged more properly in state court. The district court agreed with VOPA that it could sue in federal court. The state appealed.
The 4th Circuit Court of Appeals agreed with the state and reversed the district court. VOPA petitioned the Supreme Court to review the case, Virginia Office for Protection and Advocacy v. Stewart is before the Court.
AARP's brief, filed by attorneys with AARP Foundation Litigation, argues that Supreme Court precedent makes it clear that a state can be held to account in federal court by its own citizens in various contexts. The 100-year-old case Ex parte Young allows such actions when, as here, the case is filed against a state official asking for injunctive relief to prevent ongoing violations of federal law. AARP argues that the 4th Circuit went too far when it said that to allow one state agency (even an "independent" one) to sue another in federal court would offend the sovereign interest and "dignity" of Virginia.
The brief also points out the reasons that federal court recourse is needed in this case. Federal courts have greater expertise in federal issues, and expansive laws such as these call for a consistency among courts that can be more readily effected in federal courts than across a variety of state courts with the potential for varying and inconsistent judgments.
Moreover, the brief points out, there is an obvious potential for bias toward a state in a state court. "The political affiliations of state judges can lead to undue deference to state officials and a heightened concern for the state treasury," notes the brief, which also points out that Congress has been concerned that state instrumentalities might not be able to adequately protect federally created rights. (One example noted is the post-Civil War Reconstruction laws.)
Finally, the brief points out that investigation into abuse and neglect of people with disabilities and older people is more necessary than ever. State and federal surveys document a continued severe undercounting of harmful conditions in nursing facilities. As the brief notes, "Reasonable, unfettered access to people and records is essential for the [protection and advocacy organizations] to perform the kind of individual and systemic advocacy Congress envisioned."