The Supreme Court today vacated and remanded to the Sixth Circuit the quirky little Americans with Disabilities Act case of Haas v. Quest Recovery Services, No. 06-263. Haas was in a residential program operated by Quest as part of her DUI sentence, making this a type of "prisoner ADA" case, although the facility was hardly a prison.

In March, the Sixth Circuit decided, among other things, that co-defendant State of Ohio had Eleventh Amendment immunity, apparently unaware of the Supreme Court's decision two months earlier in United States v. Georgia. That's what rehearing petitions are for, right? Yet according to the PACER docket, the plaintiffs went straight for a certiorari petition to SCOTUS without petitioning the Sixth for rehearing.

However, the Sixth was guilty of its own breach of etiquette. Because the ADA clearly does abrogate state sovereign immunity, a holding that it can't is a holding that an Act of Congress is unconstitutional. 28 U.S.C. § 2403(a) requires notice to the USAG and an opportunity to intervene. The Sixth's failure to observe this requirement is the ostensible basis for today's remand. Justice Ginsburg adds some additional criticisms of the Sixth's opinion.