Full appeals court decides on IPAS case

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Nine months ago, a federal judge in Indianapolis refused to dismiss a case about the state's practices and programs regarding mentally ill inmates, finding an independent state agency had a right to sue on those issues.

But within a week, a three-judge federal appellate panel ruled the opposite way against that the same plaintiff in a different suit, essentially sweeping that first ruling by U.S. Judge David F. Hamilton under a legal rug and forcing him to reconsider the dismissal.

The case that Judge Hamilton handled remains ongoing and is set for bench trial early next year, but not before Judge Hamilton because he's since been elevated to the 7th Circuit Court of Appeals. Now as an appellate jurist and writing for the full court en banc, Judge Hamilton today found a chance to weigh in on identical issues he'd faced a year ago at the lower court level.

Writing for eight other majority members who disagreed with the one dissenter, Judge Hamilton authored a 63-page opinion that essentially came to the same conclusion that he'd reached on the other case - finding the agency has a right to sue and not dismissing the Indiana Protection and Advocacy Services suit.

In rehearing en banc the case of Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, et al. No. 08-3183, the appellate court articulately delved into legislative history and intent as well as caselaw to come up with a decision that touches on broader issues about states rights and federalist principles about when court jurisdiction is appropriate.

The court affirmed a decision from U.S. Judge Larry McKinney, removing the state of Indiana and Family and Social Services Administration as defendants but keeping alive the claims against the named state officials. Specifically, the court held the 11th Amendment does not bar plaintiff IPAS from seeking injunctive and declaratory relief against the state officials because the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986 provides that cause of action, and that plaintiff is entitled to access peer review records of treatment of covered mentally ill patients.

Basically, the court held the opposite of what the three-judge panel found last summer: the agency doesn't have standing to bring suits in federal court because of the 11th amendment and state statutes haven't given IPAS the powers listed in 42 U.S.C Sections 10805 and 10806.

Filed in late 2006, IPAS sued FSSA, LaRue Carter Memorial Hospital, and several state officials in order to gain records on a mentally disabled adult patient who died while at LaRue Carter to find out if she was a victim of abuse. Judge Larry McKinney had decided the defendants had to hand over the records because the victim was an adult and her parents weren't appointed her legal guardians, but the FSSA argued releasing the records would violate the victim's parents' privacy.

Relying the three principal types of exceptions to the 11th Amendment's bar, the majority found that the Supreme Court of the United States has held immunity goes away once a state official acts outside the scope of his or her authority.

"Congress gave each state the choice to establish a protection and advocacy system as either an independent state agency or a private not-for-profit entity," Judge Hamilton wrote. "Indiana made the choice to set up IPAS as an independent state agency. If we gave that choice any weight in the 11th Amendment inquiry, we would be permitting Indiana to use its own choice ... as a means to shield its state hospitals and institutions from the very investigative and oversight powers that Congress funded to protect some of the state's most vulnerable citizens. That result would be strange indeed."

Judge Richard Posner issued a concurring opinion, noting that he joins the majority "without reservation" but wrote separately to emphasize what he sees as practical considerations on the right to sue to obtain patient records for the mentally ill.

"Independent as it is of the governor and the attorney general, IPAS is a state entity in name only, especially in a suit against a state hospital - there it's an agent of the federal government, suing to assure a state's compliance with the federal duties of care for the mentally ill that the state agreed to perform," Judge Posner wrote. "It would be strange if a state could render the federal statute unenforceable by creating (or appointing) a public rather than a private protection and advocacy agent, or if the statute were unenforceable against state hospitals even though there is (as I think we all agree) no issue of state sovereign immunity."

Chief Judge Frank Easterbrook was the sole dissenter, saying that he would have dismissed the suit and let the administrative process take its course.

"Both (plaintiffs and defendants) believe that they have the patients' interests at heart, though they disagree about how to serve those interests," he wrote. "Fights between two state agencies should be resolved within the state (including the state's judiciary, if state law so provides, or through the auspices of the Department of Health and Human Services which administers the federal grant program. This statute establishes a program of cooperative federalism. Cooperation usually requires negotiation and compromise among multiple public bodies. That is the way of the administrative rather than the judicial process."

The chief judge pointed out the majority's rationale seems to fundamentally conflict with SCOTUS precedent. He wrote, "Perhaps my colleagues have a wise view as a matter of policy, but the Supreme Court's perspective is the one we must use in a hierarchical judicial system."

If this ruling stands and isn't appealed to the nation's highest court, it would likely impact the case of IPAS v. Indiana Department of Correction, 1:08-CV-11317, which Judge Hamilton had decided on July 21, 2009, and is now before Chief Judge Richard L. Young. A motion for class certification is pending and the federal court docket shows a five-day bench trial is set for July 25, 2011.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.