330 F.3d 362 | 5th Cir. | 2003
Lead Opinion
BACKGROUND
This court consolidated the cases of Theodore Johnson and Lynn August due to the common issue whether Eleventh Amendment sovereign immunity bars claims for money damages against entities of the state of Louisiana, which arose during a particular time period, brought under § 504 of the Rehabilitation Act. The district courts refused to dismiss the claims. Based on the recent decision of this court in Pace v. Bogalusa City Sch. Bd., 325 F.3d 609 (5th Cir.2003), we vacate and remand with instructions to dismiss the claims for lack of jurisdiction.
Appellee Johnson was a full time student at the University of New Orleans (UNO) on financial aid. He is disabled by a partial paralysis of his left foot. In February 2000, a medical emergency caused Johnson to withdraw from UNO. Four months later, UNO revoked Johnson’s eligibility for financial aid. Johnson successfully appealed the decision. The appeals committee, however, did not inform Johnson of its decision until after the fall 2000 semester had begun; the committee also imposed academic requirements to maintain his eligibility for financial aid. Johnson asserts that because of his late start in fall semester classes, he was unable to comply with the academic requirements. In January 2001, UNO denied Johnson financial aid for the spring semester. Johnson filed suit against the Louisiana Department of Education, the State of Louisiana, the President of the Louisiana State University System, the Louisiana Board of Regents, and UNO
August, a blind man, worked as a computer instructor for the Louisiana Depart
Separate district courts in the Eastern District of Louisiana dismissed all claims against the defendants based on state sovereign immunity except for those under § 504 of the Rehabilitation Act. The defendants appeal, arguing that state sovereign immunity bars the appellees’ § 504 claims. Under the collateral order doctrine, appellate jurisdiction exists over an appeal from the denial of a motion to dismiss based on state sovereign immunity. Reickenbacker v. Foster, 274 F.3d 974, 976 (5th Cir.2001).
DISCUSSION
In denying the appellants’ motions to dismiss Johnson’s and August’s § 504 claims, the district courts concluded that the appellants waived their state sovereign immunity under the Rehabilitation Act by receiving federal funds.
Under the Constitution’s Article I spending power, Congress may require a state to waive its sovereign immunity as a condition for receiving federal funds if two conditions are met. Id. at 614-16. First, “Congress must ‘manifest! ] a clear intent to condition participation in the programs funded under the [relevant] Act on a State’s consent to waive its constitutional immunity.’ ” Id. at 615 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171, 183 (1985)). Second, the state must knowingly and voluntarily waive its immunity by accepting the funds. Id. at 615-17.
Pace held that 42 U.S.C. § 2000d-7
CONCLUSION
State sovereign immunity bars Johnson’s and August’s § 504 claims for money damages against the appellants. We therefore vacate the district courts’ denials of the appellants’ motions to dismiss and remand with instructions to dismiss these claims for lack of jurisdiction.
VACATED and REMANDED.
. The district court dismissed UNO as a defendant, concluding that the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College is the proper party to sue on behalf of UNO. Johnson amended his complaint to name the Board of Supervisors as a defendant.
. Both courts acknowledged that no scope was left for congressional abrogation of state sovereign immunity by means of § 504 after this court’s decision in Reickenbacker, supra.
. 42 U.S.C. § 2000d-7 provides in pertinent part that ''[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973.”
.Johnson alleges wrongful acts by the appellants in 2000 and in January 2001, and August alleges wrongful acts in 1999 and 2000.
. The abrogation analysis with regard to Title II of the ADA and § 504 of the Rehabilitation Act is the same because both acts offer virtually identical protections. Pace, 325 F.3d 609, at 617 n. 11; Reickenbacker, 274 F.3d at 977 n. 17.
. We therefore need not reach the appellants' alternative argument that they lacked authority under state law to waive their sovereign immunity against suit in federal court.
Dissenting Opinion
either dissenting or specially concurring.
The premise of the instant case is simple: Exercising its Spending Clause powers, Congress offers education funds to the several states under Title X, on the condition, pellucidly expressed in 42 U.S.C. § 2000d-7(a)(l), that states accepting such funds will not be immune under the Eleventh Amendment from suit in federal court for violation of § 504 of the Rehabilitation Act and other named federal statutes, including Title IX, the Individuals with Dis
The decision in this case, though, is not ours to make, at least not yet. Only if the very recent (and as yet not precedential) decision by a prior panel of this court is not reheard en banc, or is reheard but is decided the same way, will this panel be bound. I refer to Pace v. Bogalusa City School Board,
If Pace does become precedent, this panel will have no wiggle room: We will be bound by stare decisis. With respect, however, I am convinced that the Pace panel misapplied the “knowing waiver” test — actually, applied the wrong “waiver” test — and thus, putting it candidly, wrongly decided Pace. I hope that our court will correct this wrong by rehearing Pace en banc. While tentatively concurring with the panel majority’s decision in this case— per our obligation to follow decisions of prior panels — I must respectfully express my disagreement with the analysis employed in Pace and, through it, in the instant case, and thus my disagreement with the results reached in both.
The fundamental problem with the reasoning of the panel majority here — repeating the problematic reasoning first employed in Pace — is that it conflates the “knowing waiver” exception of Fourteenth Amendment abrogation of sovereign immunity with the “clearly and unambiguously stated/non-coercive” waiver exception for Spending Clause cases. Although both exceptions are confusingly referred to in the case law as “waiver” doctrines, they embody entirely different tests, the latter being less a true waiver and more an acceptance of a condition precedent to entitlement to the federal funds.
The relevant statute in both Pace and here — § 504 of the Rehabilitation Act — ■ was enacted in 1973. Originally, it purported to waive state sovereign immunity pursuant to Congress’s power to abrogate such immunity under § 5 of the Fourteenth Amendment.
Thus, in analyzing whether the Louisiana defendants relinquished their sovereign immunity under § 504 of the Rehabilitation Act and § 2000d — 7(a)(1) when they accepted federal education money, the panel in Pace should have applied the condition precedent waiver exception of the Constitution’s Spending Clause to state sovereign immunity. Instead, the Pace court applied the “knowing waiver” exception — wrongly, I respectfully submit— which is specifically prescribed by the Supreme Court only for federal “abrogation” statutes enacted by Congress pursuant to § 5 of the Fourteenth Amendment. This distinction is critically important, because employing the “waiver” test that is proper for the Spending Clause leads inescapably to the conclusion that the Louisiana defendants validly relinquished their right to claim sovereign immunity by accepting federal funds. This result flows from the crystal clear, express condition precedent in § 2000d-7(a)(l) that by accepting the money, a State agrees to be subject to, inter alia, § 504 of the Rehabilitation Act and to suit in federal court on claims arising under that statute — even if the Louisiana defendants might have believed mistakenly that they had no immunity to waive.
Justice Scalia’s majority opinion for College Savings Bank
The upshot of this analysis is that when a Spending Clause statute clearly imposes, as an automatic condition precedent to obtaining federal funds under such a statute, the recipient state’s commitment not to invoke sovereign immunity, and a state accepts the funds on that condition, it is wholly inappropriate for a court to embark on the “knowing waiver” analysis announced by the Court in College Savings Bank for determining whether Congress has validly abrogated a state’s sovereign immunity under § 5 of the Fourteenth Amendment. To do so is to turn a blind eye on the universally recognized distinction between those statutes that would abrogate a state’s sovereign immunity under the Fourteenth Amendment and those that elicit a state’s agreement not to assert sovereign immunity as a condition precedent of its acceptance of federal funding offered by Congress under its Spending Clause powers.
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 ... or of the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.19
It cannot be questioned — at least not seriously — that this statute explicitly predicates a state’s gaining access to federal monies on that state’s commitment not to assert sovereign immunity if suits are brought under § 504 of the Rehabilitation Act. This condition applies to any state that accepts these funds, regardless of whether the state “believes” that it does or does not have any immunity to the Rehabilitation Act to relinquish. More important, when the Louisiana defendants took the money, the Supreme Court had already blessed the Rehabilitation Act as the paragon of drafting by Congress of a proper waiver under its Spending Clause power. In Lane v. Pena, the Court ruled that the current, 1986 version of the Rehabilitation Act
was enacted in response to our decision in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), where we held that Congress had not unmistakably expressed its intent to abrogate the States’ Eleventh Amendment immunity in the Rehabilitation Act, and that the States accordingly were not “subject to suit in federal court by litigants seeking retroactive monetary relief under § 504.” Id. at 235, 105 S.Ct. at 3143-3144. By enacting [42 U.S.C. § 2000d-7], Congress sought to provide the sort of unequivocal waiver that our precedents demand.20
In fact, the Supreme Court went so far as to praise “the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States’ Eleventh Amendment immunity” in the amended and re-enacted Rehabilitation Act.
As for the coercion prong of the test for conditions imposed in Spending Clause statutes, there is not even a whiff of duress in the conditional grant language in the Rehabilitation Act. Indeed, it is far less controlling of a state’s behavior than the minimum-age drinking laws that were imposed on the states through Congress’s
[A]ny state reading § 2000d-7(a) ... would clearly understand the following consequences of accepting Title IX funding: (1) the state must comply with Title IX’s antidiscrimination provisions, and (2) it consents to resolve disputes regarding alleged violations of those provisions in federal court.23
There was simply no legal or factual justification for applying the Fourteenth Amendment’s “knowing waiver” test in Pace and none exists in this case; indeed, to do so is error as a matter of law. Rather, the only proper inquiry in either case is straightforward: Is the Rehabilitation Act’s clearly stated condition that a state not assert sovereign immunity coercive? It obviously is not. As previously noted by six of our fellow circuits, the statute is clear; it contains an express condition under Congress’s Spending Clause power for waiver of state sovereign immunity, and there is nothing coercive about it.
Even more to the point, it matters not one iota that the Louisiana defendants now say, self-servingly, that they believed they had no immunity to waive, and thus cannot be held to the statute’s condition precedent of waiver. That is wholly illogical and irrelevant: The only material point is that when these defendants took the money, they had no expectation of immunity, regardless of whether this absence of expectation resulted from their own mistake of law (never an excuse) or from a correct reading of the applicable federal legislation. In buying into the Louisiana defendants’s groundless mistake of law defense, the panel opinion in Pace relies on a Second Circuit opinion that also impermissibly crosses jurisprudential lines in applying the Fourteenth Amendment’s “knowing waiver” test to the Rehabilitation Act’s condition precedent waiver, which was enacted under Congress’s Spending Clause power. Thus, Pace would put this court on the side of the Second Circuit in the circuit split that it created with the six other circuits that have analyzed the Rehabilitation Act properly as providing a waiver of state sovereign immunity under Congress’s Spending Clause power simpli-citer.
For these reasons, I specially concur in the decision of the panel majority if, in the final analysis, Pace should become binding precedent; otherwise, I respectfully dissent. Either way, though, I remain in fundamental disagreement with the reasoning and testing methodology of the panel opinion in Pace and thus with the panel majority’s opinion here based on Pace. If, however, a majority of the judges in active service on this court agree to rehear Pace en banc, and the en banc court then decides Pace as I advocate in this opinion, the instant case will be returned to this panel for correction. Otherwise, it shall be up to the Supreme Court to right the wrong that I perceive in Pace and thus in the panel majority’s reliance on it here.
Because of an artificially created, and, in my judgment, unfortunate sequence of events, it is impossible at this juncture to determine whether this writing will be a special concurrence or a dissent: (1) In November 2002, a panel of this court comprising Judges Jones, Smith, and — by designation — Siler of the Sixth Circuit, heard oral argument in Pace v. Bogalusa City School Board, and Judge Jones, as presiding judge of the panel, allotted the writing assignment to herself; (2) on February 11, 2003, while Pace remained under submission, a panel of this court comprising Judge Jones, myself, and DeMoss heard argument on the instant case, and Judge Jones, as presiding judge of the panel, allotted the writing assignment to herself; (3) six weeks later, on March 24, 2003, while the instant case remained under submission, Judge Jones filed her opinion in Pace, 325 F.3d 609 (5th Cir.2003); and (4) on April 9, 2003, Judge Jones circulated to the panel her foregoing opinion in the instant case, rejecting my suggestion that prudence and orderliness require holding this case in abeyance until the time for filing petitions for rehearing in Pace expires (it still has not) and the mandate issues, either as a result of (a) our failure to rehear Pace en banc, (b) our having reheard and disposed of Pace'en banc. Thus, until the mandate issues in Pace, finally determining the issue that controls in that case and in this one, it will be impossible to classify my writing either as a special concurrence or as a dissent. Only time will tell.
. Id.
. 274 F.3d 974 (5th Cir.2001).
. Pace, 325 F.3d 609 at 611-17.
. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244 n. 4, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).
. Id. at 247, 105 S.Ct. 3142.
. Even before the Supreme Court’s decision in Atascadero, the Spending Clause was replacing the Fourteenth Amendment as the constitutional hook on which to hang Congress's waiver of stale sovereign immunity in the Rehabilitation Act. See Atascadero, 473 U.S. at 244 n. 4, 105 S.Ct. 3142 (noting that Petitioners were defending the Rehabilitation Act’s waiver of state sovereign immunity under Congress's Spending Clause power, although Petitioners conceded that the statute was originally enacted under Congress’s Fourteenth Amendment powers).
. 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
. Id. at 686-87, 119 S.Ct. 2219 (noting that "Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts”).
. Id. at 686, 119 S.Ct. 2219.
. Cf. Grove City Coll. v. Bell, 465 U.S. 555, 575, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) (noting in Title IX case that "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept”).
. The Court explained that the government’s conditioning of federal highway funds on a
. Id. at 687, 119 S.Ct. 2219 (quoting South Dakota v. Dole, 483 U.S. 203, 211, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 81 L.Ed. 1279 (1937))).
. Id.
. For example, Congress’s Spending Clause power to condition a state's receipt of federal funds in the Medicaid program on a state's waiver of its sovereign immunity to suits thereunder has been recently affirmed by two circuit courts. See Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.2002); Antrican v. Odom, 290 F.3d 178 (4th Cir.2002).
. See United States v. Lipscomb, 299 F.3d 303, 318-24 (5th Cir.2002) (discussing Congress's power under the Spending Clause).
. Justice Scalia’s opinion for the Court in College Savings Bank goes so far as to criticize Justice Breyer's dissent for asserting that the distinction between these two separate waiver doctrines “disappears” in some contexts, despite Justice Breyer’s acknowledging that there is an "intuitive difference” between the two tests. College Savings Bank, 527 U.S. at 687, 119 S.Ct. 2219.
. Pace, 325 F.3d 609, at 612-16.
. See Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 820 n. 5 (9th Cir.2001) (noting that College Savings Bank is inapposite to those cases analyzing a waiver of sovereign immunity conditioned on a grant of funds under Congress's Spending Clause power). See also College Savings Bank, 527 U.S. at 686, 119 S.Ct. 2219 (noting that Spending
. 42 U.S.C. § 2000d-7(a)(l).
. Lane v. Pena, 518 U.S. 187, 200, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (emphasis added).
. Id.
. 483 U.S. at 206, 107 S.Ct. 2793.
. Litman v. George Mason Univ., 186 F.3d 544, 554 (4th Cir.1999).
. See Koslow v. Pennsylvania, 302 F.3d 161, 171 (3d Cir.2002) (holding that the Rehabilitation Act contains an "ordinary quid pro quo that the Supreme Court has repeatedly approved”); Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626, 628 (6th Cir.2001) (holding that "a plaintiff may sue a State under Section 504 of the Rehabilitation Act” because § 2000d-7 is "a valid and unambiguous waiver”); Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir.2000) (en banc) (holding that the statute's clear language provided for a valid waiver of state sovereign immunity); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir.2000) (noting that "the Rehabilitation Act is enforceable in federal court against recipients of federal largess”); Sandoval v. Hagan, 197 F.3d 484. 493 (11th Cir.1999) (holding that the terms of the Rehabilitation Act provide for a "clear” waiver of state sovereign immunity under the Spending Clause), rev’d on other grounds, Alexander v. Sandoval, 531 U.S. 1049, 121 S.Ct. 652, 148 L.Ed.2d 556 (11th Cir.2000); Clark v. California, 123 F.3d 1267, 1271 (9th Cir.1997) (holding that "the Rehabilitation Act manifests a clear intent to condition a state’s participation on its consent to waive its Eleventh Amendment immunity”).
.Compare supra note 24 (listing six circuit opinions analyzing the Rehabilitation Act and § 2000d-7 under the proper Spending Clause