The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2004 Decided July 9, 2004
No. 03-7044
ADAM BARBOUR,
APPELLEE
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
APPELLANT
UNITED STATES OF AMERICA,
INTERVENOR
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00344)
Bruce P. Heppen argued the cause for appellant. With
him on the briefs were Cheryl C. Burke, Robert J. Kniaz, and
Jay R. Goldman.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Dorene M. Haney argued the cause and filed the brief for
appellee.
Sarah E. Harrington, Attorney, U.S. Department of Jus-
tice, argued the cause for intervenor. With her on the brief
were R. Alexander Acosta, Assistant Attorney General, and
Jessica Dunsay Silver, Attorney.
Douglas B. Huron and Richard A. Salzman were on the
brief for amicus curiae Metropolitan Washington Employ-
ment Lawyers Association in support of appellee.
Before: SENTELLE, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
Dissenting opinion filed by Circuit Judge SENTELLE.
GARLAND, Circuit Judge: The Washington Metropolitan
Area Transit Authority (WMATA) contends that sovereign
immunity protects it from being sued in federal court under
§ 504 of the Rehabilitation Act, 29 U.S.C. § 794, for discrimi-
nating on the basis of disability. It insists that it did not
waive that immunity by accepting federal financial assistance,
and further maintains that Congress lacks power under the
Spending Clause to condition the receipt of federal funds on
such a waiver. We disagree and hold that WMATA has
waived its immunity to Rehabilitation Act suits by taking
federal transportation funds.
I
WMATA fired Adam Barbour from his position as a proba-
tionary electrician on April 1, 1998. Barbour charges that
WMATA fired him because he suffers from a mental disabili-
ty, bipolar disorder. WMATA denies the charge, maintaining
that it terminated Barbour for insubordinate, threatening,
and anti-social behavior.
On February 24, 2000, Barbour sued WMATA in the
United States District Court for the District of Columbia
under federal and local causes of action, alleging that the
Authority discriminated against him because of his disability.
3
Only one cause of action survived WMATA’s motions for
dismissal and summary judgment: Barbour’s claim that his
discharge violated § 504 of the Rehabilitation Act. In per-
mitting that claim to go forward, the district court rejected
WMATA’s contention that the Eleventh Amendment renders
WMATA immune from a Rehabilitation Act suit for money
damages in federal court.
WMATA now appeals the district court’s denial of immuni-
ty, a kind of interlocutory appeal over which this court has
jurisdiction. See KiSKA Constr. Corp.-U.S.A. v. WMATA,
167 F.3d 608, 610–11 (D.C. Cir. 1999). The United States has
intervened on Barbour’s side, maintaining that WMATA
waived its Eleventh Amendment immunity by accepting fed-
eral funds, and that the waiver is constitutionally valid.
These issues regarding WMATA’s immunity are the only
ones that we decide on this appeal. Because the claim of
immunity presents a legal question, our review is de novo.
See United States v. Microsoft, 253 F.3d 34, 50-51 (D.C. Cir.
2001).
II
WMATA, a mass transit system for the District of Colum-
bia and surrounding suburban areas, was created by an
interstate compact among Maryland, Virginia, and the Dis-
trict of Columbia, and enjoys the Eleventh Amendment im-
munity of the two signatory states. Morris v. WMATA, 781
F.2d 218, 219-20 (D.C. Cir. 1986); see Hess v. Port Auth.
Trans.-Hudson Corp., 513 U.S. 30, 49-50 & n.20 (1994). The
Eleventh Amendment to the Constitution provides: ‘‘The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.’’ U.S.
CONST. amend. XI. ‘‘Although by its terms the Amendment
applies only to suits against a State by citizens of another
State,’’ the Supreme Court has ‘‘extended the Amendment’s
applicability to suits by citizens against their own states.’’
4
Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 362
(2001).
There are two important exceptions to Eleventh Amend-
ment immunity. First, a state may waive its immunity and
consent to suit. Second, Congress may exercise its enforce-
ment power under § 5 of the Fourteenth Amendment to
abrogate a state’s immunity without its consent. See College
Savings Bank v. Florida Prepaid Postsecondary Educ. Ex-
pense Bd., 527 U.S. 666, 670 (1999) (citing Clark v. Barnard,
108 U.S. 436 (1883), and Fitzpatrick v. Bitzer, 427 U.S. 445
(1976)); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238
(1985). Whether WMATA waived its immunity is the ques-
tion at issue here.
The ‘‘ ‘test for determining whether a State has waived its
immunity from federal-court jurisdiction is a stringent one.’ ’’
College Savings, 527 U.S. at 676 (quoting Atascadero, 473
U.S. at 241). The courts will find a waiver if a state makes a
‘‘clear declaration’’ of its intent to submit to federal court
jurisdiction. Id. To elicit a clear declaration, Congress
‘‘may, in the exercise of its spending power, condition its
grants of funds to the States upon their taking certain actions
that Congress could not require them to take, and TTT
acceptance of the funds entails an agreement to the actions.’’
Id. at 686. But Congress must exercise its power explicitly:
a congressional waiver provision is constitutional only if it
manifests ‘‘a clear intent to condition participation in the
programs funded under the Act on a State’s consent to waive
its constitutional immunity.’’ Atascadero, 473 U.S. at 247.
WMATA denies that it consented to waive its Eleventh
Amendment immunity from suit under the Rehabilitation Act.
First, it contends that Congress did not clearly condition
acceptance of federal transportation funds on such a waiver.
Second, WMATA maintains that, even if Congress did condi-
tion financial assistance on a waiver, WMATA did not know-
ingly accept the money on that basis. We consider these
arguments in turn.
A
Section 504 of the Rehabilitation Act of 1973 provides:
5
No otherwise qualified individual with a disability in the
United States TTT shall, solely by reason of her or his
disability, be excluded from the participation in, be de-
nied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistanceTTTT
29 U.S.C. § 794(a). The Act provides remedies for violations
of § 504 by ‘‘any recipient of Federal assistance.’’ Id.
§ 794a(2). In Atascadero State Hospital v. Scanlon, the
Supreme Court found that the Rehabilitation Act’s ‘‘general
authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate the
Eleventh Amendment,’’ 473 U.S. at 246, and ‘‘likewise falls
short of manifesting a clear intent to condition participation in
the programs funded under the Act on a State’s consent to
waive its constitutional immunity,’’ id. at 247. Accordingly,
the Court concluded that the Eleventh Amendment remained
effective in proscribing Rehabilitation Act suits against states
and state agencies. Id.
In 1986, in response to Atascadero, Congress passed the
Civil Rights Remedies Equalization Act (CRREA), which
provides in relevant part:
A state shall not be immune under the Eleventh Amend-
ment of the Constitution of the United States from suit
in Federal court for a violation of section 504 of the
Rehabilitation Act of 1973, title IX of the Education
Amendments of 1972, the Age Discrimination Act of
1975, title VI of the Civil Rights Act of 1964, or the
provisions of any other Federal statute prohibiting dis-
crimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1); see Lane v. Pena, 518 U.S. 187,
198 (1996). Every circuit that has considered the question —
that is, every circuit other than our own and the Federal
Circuit — has held that the language of the CRREA unam-
biguously conditions a state agency’s acceptance of federal
funds on its waiver of Eleventh Amendment immunity.1 Al-
1See Nieves–Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir.
2003); Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98 (2d Cir.
6
beit in dictum, the Supreme Court has said so as well. See
Lane, 518 U.S. at 200 (declaring that in the CRREA, ‘‘Con-
gress responded to our decision in Atascadero by crafting an
unambiguous waiver of the States’ Eleventh Amendment
immunity’’) (emphasis added).
Notwithstanding the views of the circuits and of the Su-
preme Court, WMATA maintains that the CRREA does not
make clear that receipt of funds is conditioned on a waiver of
immunity. We disagree. The CRREA identifies ‘‘recipients
of Federal financial assistance’’ as the only entities whose
immunity is vulnerable. Moreover, the CRREA waiver is
directly tied to Rehabilitation Act § 504, which likewise ap-
plies only to discrimination ‘‘under any program or activity
receiving Federal financial assistance,’’ including state instru-
mentalities. 29 U.S.C. § 794(a); see id. § 794(b). The lan-
guage of the two statutes together is thus undeniably clear
about the simple choice offered to states: if they accept
federal funds, they will lose their immunity to Rehabilitation
Act suits for discriminatory acts; if they decline the money,
they remain free of the Act’s proscriptions. WMATA could
have avoided the Act — and preserved its immunity — by
declining to take federal transportation funds. It chose not
to. By stepping into the statute’s reach, it voluntarily ex-
posed itself to the suits the statute authorizes.
WMATA insists that the CRREA is ambiguous because its
opening clause — ‘‘A state shall not be immune under the
Eleventh Amendment of the Constitution of the United States
from suit in Federal court’’ — parallels language that Con-
gress has frequently used in attempting to abrogate state
2001); A.W. v. Jersey City Pub. Schs., 341 F.3d 234 (3d Cir. 2003);
Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999); Pace
v. Bogalusa City Sch. Bd., 325 F.3d 609 (5th Cir. 2003), vacated &
reh’g en banc granted, 339 F.3d 348 (5th Cir. 2003); Nihiser v. Ohio
Envtl. Prot. Agency, 269 F.3d 626 (6th Cir. 2001); Stanley v.
Litscher, 213 F.3d 340 (7th Cir. 2000); Jim C. v. United States, 235
F.3d 1079 (8th Cir. 2000) (en banc); Lovell v. Chandler, 303 F.3d
1039 (9th Cir. 2002); Robinson v. Kansas, 295 F.3d 1183 (10th Cir.
2002); Garrett v. University of Ala. at Birmingham Bd. of Trs., 344
F.3d 1288 (11th Cir. 2003).
7
immunity. The Supreme Court has indeed construed similar
statutory language as the language of abrogation. See, e.g.,
Garrett, 531 U.S. at 360 (Americans with Disabilities Act, 42
U.S.C. §§ 12111-12117, 12202); College Savings, 527 U.S. at
682 (Lanham Act, 15 U.S.C. § 1122(a)); Florida Prepaid
Postsecondary Educ. Expense Bd. v. College Savings Bank,
527 U.S. 627, 635 (1999) (Patent Remedy Clarification Act, 35
U.S.C. § 296(a)).2 WMATA argues that, while ‘‘abrogation
and waiver are related concepts,’’ it is ‘‘implausible that the
same words would mean both.’’ Appellant’s Br. at 5.
Whatever the validity of WMATA’s claim that the language
of the CRREA’s opening clause cannot do double duty, that
claim simply ignores the statute’s closing words, which, like
those of the Rehabilitation Act, single out recipients of ‘‘Fed-
eral financial assistance’’ as the only entities within the
statute’s purview. By contrast, none of the abrogation stat-
utes WMATA cites contains anything more than the naked
‘‘shall not be immune’’ language. This is a distinction of
considerable difference.
College Savings Bank v. Florida Prepaid makes clear why
this distinction matters. In that case, the question was
whether Congress could condition a state’s sale of a tuition
prepayment plan on relinquishment of its immunity to Lan-
ham Act suits for false advertising. The Court held that such
a condition amounted to a ‘‘forced,’’ rather than a voluntary
waiver because the state could not avoid liability except by
abstaining from interstate commerce. 527 U.S. at 683. At
the same time, however, College Savings declared that ‘‘condi-
tions attached to a State’s receipt of federal funds are simply
not analogous to TTT conditions attached to a State’s decision
to engage in otherwise lawful commercial activity.’’ Id. at 678
n.2. As the Court explained, ‘‘Congress has no obligation to
use its Spending Clause power to disburse funds to the
States; such funds are gifts.’’ Id. at 686–87. Thus, what
Congress threatens if the state refuses to agree to its spend-
ing condition is merely ‘‘the denial of a gift or gratuity,’’
2In the cited cases, the Court ruled that abrogation was beyond
Congress’ authority.
8
which is ‘‘fundamentally different’’ from the ‘‘automatic[ ]’’
coercion that takes place when ‘‘what is attached to the
refusal to waive is the exclusion of the State from otherwise
lawful activity.’’ Id.3
With this distinction, the Supreme Court reaffirmed its
prior holdings ‘‘that Congress may, in the exercise of its
spending power, condition its grant of funds to the States
upon their taking certain actions that Congress could not
require them to take, and that acceptance of the funds entails
an agreement to the actions.’’ Id. at 686 (citing South
Dakota v. Dole, 483 U.S. 203 (1987)). Because that is precise-
ly what Congress did in the CRREA, we reject WMATA’s
contention that its acceptance of funds was insufficient to
constitute a valid waiver of its Eleventh Amendment immuni-
ty.
B
WMATA’s second argument is that, even if the CRREA did
unambiguously condition receipt of funds on a waiver of
immunity, the Authority nonetheless did not knowingly con-
sent to such a waiver by taking federal funds in 1998, the
year in which it terminated Barbour. In that year, WMATA
contends, ‘‘it reasonably believed that Congress had already
abrogated its immunity’’ from suits for disability discrimina-
tion by virtue of Title I of the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. § 12112(a). Reply Br. at 7.4 Al-
though the Supreme Court later held in Board of Trustees v.
Garrett, 531 U.S. 356 (2001), that Title I exceeded Congress’
authority to abrogate sovereign immunity, WMATA argues
3 Although College Savings noted that ‘‘the financial inducement
offered by Congress might be so coercive as to pass the point at
which ‘pressure turns into compulsion,’ ’’ 527 U.S. at 687 (quoting
South Dakota v. Dole, 483 U.S. 203, 211 (1987)), WMATA does not
suggest that point has been passed here.
4 Title I bars a covered entity from discriminating ‘‘against a
qualified individual with a disability because of the disability of such
individual in regard to TTT terms, conditions, and privileges of
employment.’’ 42 U.S.C. § 12112(a).
9
that it could not have predicted that result in 1998. At that
time, WMATA maintains, it mistakenly believed that waiving
immunity to Rehabilitation Act suits by accepting federal
funds would cost it little that the ADA had not already taken.
This misapprehension regarding the scope of its existing
immunity, WMATA concludes, renders its waiver ‘‘unknow-
ing’’ and hence invalid.
A similar argument prevailed in Garcia v. S.U.N.Y. Health
Sciences Center, 280 F.3d 98 (2d Cir. 2001), a case involving
alleged disability discrimination by a New York instrumental-
ity in 1995. No other circuit has accepted this argument,5
and those that have considered the issue have decided to the
contrary. See Doe v. Nebraska, 345 F.3d 593, 601–02 (8th
Cir. 2003); Garrett v. University of Ala. at Birmingham Bd.
of Trs., 344 F.3d 1288, 1292–93 (11th Cir. 2003); M.A. v.
State–Operated Sch. Dist., 344 F.3d 335, 349–51 (3d Cir.
2003). We likewise reject it, and with it WMATA’s claim that
it did not knowingly waive its immunity when it took federal
transportation funds in 1998. We do so for three reasons.
First, College Savings and Atascadero establish a single
criterion for determining the validity of a waiver: Congress
must clearly condition acceptance of federal funds on the
state’s waiver of its sovereign immunity. See College Sav-
ings, 527 U.S. at 686; Atascadero, 473 U.S. at 247. Although
it is true that an effective waiver must be ‘‘knowing,’’ accept-
ing federal funds on a clear condition constitutes an objective
manifestation of knowledge. As the Court said in College
Savings, when the condition is explicit, ‘‘acceptance of the
funds entails an agreement to the actions.’’ 527 U.S. at 686.
See also Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1, 17 (1981) (‘‘By insisting that Congress speak with a
clear voice, we enable the States to exercise their choice
knowingly, cognizant of the consequences of their partic-
ipation.’’).
5A panel of the Fifth Circuit agreed with Garcia, but the full
court vacated that decision pending reconsideration en banc. See
Pace, 339 F.3d 348 (granting petition for rehearing en banc).
10
Although Garcia conceded that the CRREA ‘‘constitutes a
clear expression of Congress’ intent to condition acceptance of
funds on a state’s waiver of its Eleventh Amendment immuni-
ty,’’ 280 F.3d at 113, it added a second criterion for validity:
that ‘‘the state, in accepting the funds, believed it was actually
relinquishing its right to sovereign immunity.’’ Id. at 115 n.5
(emphasis added). But the Supreme Court has never consid-
ered a state’s state of mind when ascertaining whether a
waiver has been effected. Rather, it has directed courts to
inquire only as to whether the state accepted federal funds in
the face of a clear condition. Because that is just what
WMATA did, its protestation of lack of knowledge is to no
avail.
Second, even Garcia recognized that an argument like
WMATA’s, that a state instrumentality had miscalculated
what its immunity was worth, would lose force as the Su-
preme Court’s Eleventh Amendment jurisprudence evolved.
Although Garcia saw no reason for New York to suspect that
the ADA’s abrogation was invalid in 1995, it acknowledged
that a state’s acceptance of funds at a later date — after the
Supreme Court issued two decisions that formed the predi-
cate for Garrett — ‘‘might properly reveal a knowing relin-
quishment of sovereign immunity.’’ 280 F.3d at 113 n.4.
When WMATA accepted federal funds in 1998, both of those
predicate decisions had already been issued. See City of
Boerne v. Flores, 521 U.S. 507, 520 (1997) (holding that
legislation promulgated under § 5 of the Fourteenth Amend-
ment that reaches beyond the scope of the Amendment’s
guarantees must exhibit ‘‘congruence and proportionality be-
tween the injury to be prevented or remedied and the means
adopted to that end’’); Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 72 (1996) (holding that Congress lacks authority to
abrogate state immunity under Article I of the Constitution).
Indeed, WMATA itself argued in another case in 1997 — a
year before Barbour was terminated — that the Court’s
decision in Seminole Tribe had rendered invalid Congress’
attempted abrogation of state immunity in the Age Discrimi-
nation in Employment Act (ADEA), 29 U.S.C. § 621 et seq.
See Motion to Dismiss ADEA Claims, Jones v. WMATA, No.
89–552 (D.D.C. Jan. 14, 1997). Hence, even if we were to
11
adopt Garcia’s analysis, it would be insufficient to sustain
WMATA’s claim of immunity in this case.
Finally, even if WMATA’s state of mind were a relevant
consideration, the underlying implication of its argument —
that it was only WMATA’s miscalculation about whether its
immunity had already been abrogated by the ADA that led it
to accept federal funds in 1998 — would fail on the facts.
The CRREA, after all, was passed in 1986 — four years
before the ADA, and hence four years before WMATA could
claim that it thought it lost its protection against disability
discrimination lawsuits. Nonetheless, WMATA took federal
transportation funds during each of those years. Reply Br.
at 9. Likewise, although Garrett was decided in 2001, WMA-
TA has continued to take federal funds ever since — notwith-
standing its knowledge that the ADA’s abrogation was inef-
fective after that date. Indeed, at oral argument, counsel for
WMATA conceded that ‘‘it is hard to imagine that the Au-
thority would have foregone’’ the funds in 1998, whatever the
impact on its sovereign immunity. Oral Arg. Tr. at 12. It is
thus clear that WMATA’s decision was not based on a miscal-
culation about the scope of its sovereign immunity, but rather
on a reckoning of the value of the financial assistance offered
by the federal government.6
III
As a last argument, WMATA contends that Congress lacks
power under the Spending Clause, U.S. CONST. Art. I, § 8, cl.
6 In addition to contending that it believed the ADA had left it
with nothing to lose by taking federal funds, WMATA argues that it
thought the ‘‘abrogation language’’ of the CRREA similarly left it
with liability under the Rehabilitation Act whatever it did. This
argument is meritless, and no court has accepted it. As we have
noted above, both the CRREA and the Rehabilitation Act apply
only to discrimination by recipients of ‘‘Federal financial assis-
tance.’’ 42 U.S.C. § 2000d–7(a)(1); 29 U.S.C. § 794(a). Hence,
whether WMATA read the CRREA’s text as the language of
‘‘abrogation’’ or of ‘‘waiver,’’ it had to know that it could wholly
avoid liability under the Rehabilitation Act by declining federal
funds.
12
1, to condition WMATA’s federal transportation funds on a
waiver of immunity from suit under the Rehabilitation Act.
Specifically, WMATA argues that the CRREA’s waiver condi-
tion runs afoul of the Supreme Court’s decision in South
Dakota v. Dole, because it is ‘‘unrelated to the federal inter-
est’’ in transportation funds. 483 U.S. 203, 206-07 (1987).7
The Court did not elaborate on the meaning of that state-
ment, and it has not done so since, other than to cite Dole for
the proposition that conditions on the receipt of federal funds
must ‘‘bear some relationship’’ to the purpose of the spending.
New York v. United States, 505 U.S. 144, 167 (1992). Nor has
the Court ever overturned Spending Clause legislation on
relatedness grounds. Whatever substantive limitation Dole’s
relatedness requirement poses for congressional power, it is
clear that the CRREA has not crossed that line.
In the CRREA, the legislature made clear that it did not
want any federal funds to be used to facilitate disability
discrimination, and that exposing recipient entities to the
threat of federal damage actions was an effective deterrent.
Congress’s spending condition guarantees that federal money
is used for the provision of transportation, and nothing else.
Every circuit that has considered the issue has concluded that
the connection between the congressional goal (that federal
transportation funds be used exclusively for that purpose),
and the congressional means (the spending condition), is close
enough to be sustained under the spending power. See
Nieves–Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir.
2003) (‘‘As to the third [Dole] requirement, § 2000d-7 is
manifestly related to Congress’s interest in deterring federal-
ly supported agencies from engaging in disability discrimina-
tion.’’); A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 243 (3d
Cir. 2003) (same); Lovell v. Chandler, 303 F.3d 1039, 1051
(9th Cir. 2002) (same).
7Dole listed a number of other limits on Congress’ Spending
Clause authority. WMATA does not contend that any of those
apply here, except insofar as Dole’s requirement that funding
conditions be ‘‘unambiguous,’’ 483 U.S. at 207, is relevant to WMA-
TA’s arguments about waiver, a point we addressed in Part II.A.
13
We do not break any new ground in reaching the same
conclusion. As the United States points out, the Rehabilita-
tion Act’s nondiscrimination requirement is patterned after
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,
and Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681(a), which prohibit, respectively, race and sex discrimi-
nation in programs or activities that receive federal funds.
See NCAA v. Smith, 525 U.S. 459, 466 n.3 (1999). In Lau v.
Nichols, the Supreme Court upheld Title VI as valid Spend-
ing Clause legislation: ‘‘The Federal Government has power
to fix the terms on which its money allotments to the States
shall be disbursed. Whatever may be the limits of that
power, they have not been reached here.’’ 414 U.S. 563, 569
(1974). Similarly, with respect to Title IX, the Court held in
Grove City College v. Bell that ‘‘Congress is free to attach
reasonable and unambiguous conditions to federal financial
assistance that educational institutions are not obligated to
accept.’’ 465 U.S. 555, 575 (1984) (citing Pennhurst, 451 U.S.
at 17, where the Court noted that, ‘‘pursuant to the spending
power, TTT Congress may fix the terms on which it shall
disburse federal money’’ if it does so ‘‘unambiguously’’).
WMATA’s only response is to note, correctly, that Lau and
Grove City predate Dole. But Dole itself cited Lau as a case
in which Congress had lawfully used the spending power ‘‘ ‘to
further broad policy objectives by conditioning receipt of
federal moneys upon compliance by the recipient with federal
statutory and administrative directives.’ ’’ Dole, 483 U.S. at
206 (citing Lau, and quoting Fullilove v. Klutznick, 448 U.S.
448, 474 (1980) (opinion of Burger, C.J.)). The Supreme
Court has never suggested that it has any second thoughts
about its treatment of the spending power in either Lau or
Grove City.8 To the contrary, in New York v. United States,
the Court again held up Lau as an example of a Spending
8 The Court did subsequently reject Lau’s interpretation of Title
VI as extending beyond intentional discrimination. See Alexander
v. Sandoval, 532 U.S. 275, 285 (2001). And the Civil Rights
Restoration Act of 1987, 20 U.S.C. § 1687, superceded Grove City’s
interpretation of the scope of Title IX. See NCAA, 525 U.S. at 465-
66 & n.4; see also 29 U.S.C. § 794(b).
14
Clause case in which it had ‘‘found no constitutional flaw in a
federal statute.’’ 505 U.S. at 167. Nor did the specific
condition imposed by regulation in Lau — that school sys-
tems provide language instruction for non-English-speaking
students — bear a more ‘‘obvious relation,’’ Dissenting Op. at
6, to the general federal (educational) appropriation to which
it was tied than does the condition here. Nothing in Lau
suggested that the federal funds were, or had to be, intended
for classroom instruction rather than, for example, the acqui-
sition of equipment or the construction of athletic facilities.
See 42 U.S.C. § 2000d (barring discrimination in ‘‘any pro-
gram or activity receiving Federal financial assistance’’).
In its most recent Spending Clause case, the Court con-
firmed the constitutionality of 18 U.S.C. § 666(a)(2), which
makes bribery of officials of state entities that receive in
excess of $10,000 in federal funds a federal crime, and which
does not require a connection between a given bribe and a
particular federal grant. See Sabri v. United States, 124 S.
Ct. 1941 (2004).9 ‘‘Congress has the authority under the
Spending Clause to appropriate federal monies to promote
the general welfare, Art. I § 8, cl. 1,’’ the Court said, ‘‘and it
has corresponding authority under the Necessary and Proper
Clause, Art. I § 8, cl. 18, to see to it that taxpayer dollars
appropriated under that power are in fact spent for the
general welfare, and not frittered away in graft.’’ Id. at 1946.
That statement echoes the congressional purpose underlying
Title VI, as the Court understood it in Lau: ‘‘ ‘Simple justice
requires that public funds, to which all taxpayers of all races
contribute, not be spent in any fashion which encourages,
entrenches, subsidizes, or results in racial discrimination.’ ’’
414 U.S. at 569 (quoting 110 Cong. Rec. 6543 (March 30, 1964)
(Sen. Humphrey, quoting President Kennedy’s message to
9 The dissent’s contention that Sabri is distinguishable because
‘‘[r]ampant bribery of WMATA officials TTT would make it more
difficult for federal funds to do the job of providing mass transit,’’
while disability discrimination ‘‘would not,’’ Dissenting Op. at 7,
overlooks the Court’s recognition that § 666 does not require ‘‘any
connection between a bribe or kickback and some federal money.’’
124 S. Ct. at 1945.
15
Congress, June 19, 1963)). We see no reason why it should
matter, for purposes of the Spending Clause, that in the case
before us Congress’ concern runs to discrimination on the
basis of disability rather than race. Indeed, Congress rea-
sonably can insist that decisions regarding the expenditure of
federal funds not be based on irrational discrimination. Such
discrimination ‘‘fritter[s] away’’ federal funds, 124 S. Ct. at
1946, just like the graft discussed in Sabri, and insisting on a
waiver of immunity to help combat it is just as closely related
to the underlying purpose of providing such funds.
Finally, we note an analytic difference that may be at the
root of our disagreement with our dissenting colleague. In
his view, ‘‘conditional funding grants are no less regulatory
than any form of federal regulation of the states.’’ Dissenting
Op. at 2. On this point, however, College Savings teaches
otherwise, and it is worth repeating that opinion’s key pas-
sage here:
As we have held in such cases as South Dakota v. Dole,
483 U.S. 203 (1987), Congress may, in the exercise of its
spending power, condition its grant of funds to the States
upon their taking certain actions that Congress could not
require them to takeTTTT These cases seem to us funda-
mentally different from the present one [about regulation
under the Lanham Act]TTTT Congress has no obligation
to use its Spending Clause power to disburse funds to
the States; such funds are gifts.
527 U.S. at 686–87.
IV
We hold that WMATA waived its immunity from suit under
the Rehabilitation Act by accepting federal transportation
funds, and that Congress had authority under the Spending
Clause to condition the receipt of federal funds on such a
waiver. The judgment of the district court is therefore
Affirmed.
1
SENTELLE, Circuit Judge, dissenting: The majority holds
that the Washington Metropolitan Area Transit Authority
(‘‘WMATA’’), an entity created pursuant to an interstate
compact among Maryland, Virginia, and the District of Co-
lumbia that possesses Eleventh Amendment immunity, see
Morris v. WMATA, 781 F.2d 218, 219-20 (D.C. Cir. 1986), has
waived its immunity pursuant to 42 U.S.C. § 2000d-7 by
accepting federal transportation funds. It also holds that this
waiver and section 504 of the Rehabilitation Act, which to-
gether subject WMATA to private damages suits for employ-
ment discrimination on the basis of disability, represent a
valid exercise of Congress’s power to appropriate money to
‘‘provide for the common Defence and general Welfare of the
United States’’ as applied in this case. U.S. Const. art. I, § 8,
cl. 1. In my view, the second holding contravenes the princi-
ple that ‘‘Congress’ authority is limited to those powers
enumerated in the Constitution, and TTT those enumerated
powers are interpreted as having judicially enforceable outer
limits.’’ United States v. Lopez, 514 U.S. 549, 566 (1995).
I would hold that conditioning acceptance of federal trans-
portation funds on a state’s acquiescence to private damages
suits for disability discrimination in employment is not a valid
exercise of Congress’s power under the Spending Clause
under the rule of New York v. United States, 505 U.S. 144,
167 (1992), and South Dakota v. Dole, 483 U.S. 203, 207
(1987). I would further hold that this step is not within
Congress’s enforcement power under section 5 of the Four-
teenth Amendment.
I would reverse the judgment of the district court for the
reason that Congress lacks the power to subject states, or
entities like WMATA treated as states for purposes of immu-
nity, to suits for money damages for disability discrimination
in the manner it has done here.
A. Spending Clause
With all respect, I disagree with the majority that Con-
gress has the power under the Spending Clause to expose the
states to liability for the sort of suit Barbour brought against
WMATA. ‘‘Congress may attach conditions on the receipt of
2
federal funds,’’ but ‘‘[s]uch conditions must (among other
requirements) bear some relationship to the purpose of the
federal spending.’’ New York v. United States, 505 U.S. 144,
167 (1992) (quoting South Dakota v. Dole, 483 U.S. 203, 206
(1987)) (internal quotation marks omitted). That relationship
is a nexus between the condition imposed and the ‘‘federal
interest in particular national projects or programs’’ repre-
sented by the grant of funds. Dole, 483 U.S. at 207 (quoting
Massachusetts v. United States, 435 U.S. 444, 461 (1978)).
The Dole principle is fundamental to our constitutional
structure. Without it, ‘‘the spending power could render
academic the Constitution’s other grants and limits of federal
authority.’’ New York, 505 U.S. at 167. As the Supreme
Court explained in the only case in which it struck down an
Act of Congress as exceeding Congress’s Spending Clause
authority, it is implausible to presume that
the makers of the Constitution, in erecting the federal
government, intended sedulously to limit and define its
powers, so as to reserve to the states and the people
sovereign power, to be wielded by the states and their
citizens and not to be invaded by the United States, they
nevertheless by a single clause gave power to the Con-
gress to tear down the barriers, to invade the states’
jurisdiction, and to become a parliament of the whole
people, subject to no restrictions save such as are self-
imposed.
United States v. Butler, 297 U.S. 1, 78 (1936).
True, a state can simply decline to accept a conditional
funding grant, but such grants are no less regulatory simply
because acceptance is optional. The offer of funds creates an
incentive to comply with the regulation regardless and there-
fore represents a direct and real attempt by the federal
government to regulate even if the condition is declined. In
this respect, conditional funding grants are no less regulatory
than any form of federal regulation of the states. Direct
regulations threaten penalties; conditional funding grants
threaten to withhold rewards. There is no functionally signif-
icant distinction between the two sorts of inducements as to
3
their regulatory character (though of course, as the majority
points out, there are other differences, like those pointed out
by the Supreme Court in College Savings Bank v. Florida
Prepaid Postsecondary Education Expense Board, 527 U.S.
666, 686-87 (1999)).1 The germaneness requirement of South
Dakota v. Dole and New York v. United States is therefore
essential to maintain some semblance of the Framer’s original
framework of a federal government of limited and enumerat-
ed regulatory power.
There is no reasonably close relationship between the grant
of funds here and the imposed condition. The purpose of the
federal funds WMATA receives is to subsidize the mass-
transit services WMATA provides. They are transportation
funds. As applied in this case, the condition is subjecting
WMATA to a private suit for money damages for discriminat-
ing against its employees on the basis of disability. Prohibit-
ing disability discrimination in employment is simply not
‘‘Necessary and Proper,’’ U.S. Const. art. I, § 8, cl. 18, to
spending money for mass transit. The effect of such a
prohibition is to create an entitlement for the disabled, per-
haps a laudable goal, but not one necessary or proper to
providing mass transit.
Barbour’s brief offers no answer to this argument. The
government and the majority make an attempt to fill this
1 My point is that the two sorts of powers are equally regulatory,
and therefore that the Lopez principle applies to Spending Clause
conditions with full force, not that there no functional differences
between the two. College Savings Bank recognizes that Spending
Clause conditions differ from direct regulations under Congress’s
other Article I powers in that the latter are coercive. 527 U.S. at
686-87. The point, again, is that both are equally regulatory.
In any event, my disagreement with the majority in no way turns
on this dispute over this aspect of Congress’s Spending-Clause
power. The majority assumes that there are limits to that power.
The core of our disagreement is whether Congress’s disapproval of
disability discrimination is enough of a connection between the
transportation funds and the condition imposed here. In my view,
it is not.
4
gaping void in Barbour’s case. However, I am not convinced
that the connection they assert between the funds and the
condition here is constitutionally adequate.
Following the government and several other circuits, the
majority asserts that Congress’s judgment that ‘‘it did not
want any federal funds to be used to facilitate disability
discrimination’’ in employment is enough of a connection
between the condition here and the mass-transit funds. Maj.
op. at 12. This cannot be right. The majority and the
government are saying that the legislature can identify some-
thing a state does that it does not like – in this case,
discriminate on the basis of disability – and condition any
grant of funds on a state’s not doing that act any more,
assuming the condition is otherwise constitutionally valid.
Presumably, Congress has an ‘‘interest’’ in preventing states
from doing anything with its funds that it does not like, and
there is nothing magical about disability discrimination that
makes the ‘‘interest’’ in preventing it distinctively federal. If
such an ‘‘interest’’ were enough to sustain such legislation,
that would leave the Spending Clause without any ‘‘judicially
enforceable outer limit[ ].’’ Lopez, 514 U.S. at 566. In a
system in which the federal government’s powers remain
limited and enumerated, such an argument must fail.
The reasoning of the circuits the majority cites is no better.
The First Circuit’s reasoning consists of a single sentence, to
wit, that the condition ‘‘is manifestly related to Congress’s
interest in deterring federally supported agencies from en-
gaging in disability discrimination.’’ Nieves-Marquez v.
Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing A.W. v.
Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2003)). As
discussed, however, the proper test under Dole and New York
is whether the condition is germane to the interest in the
‘‘particular national project[ ] or program[ ],’’ Dole, 483 U.S.
at 207 (emphasis added), not whether Congress has a general-
ized ‘‘interest’’ in imposing the condition. For the reasons I
have stated, the condition here fails the Dole test as properly
understood. The Third and Ninth Circuits’ reasoning essen-
tially tracks the reasoning of the First Circuit. See A.W., 341
F.3d at 243-44; Koslow v. Pennsylvania, 302 F.3d 161, 175-76
5
(3d Cir. 2002); Lovell v. Chandler, 303 F.3d 1039, 1051 (9th
Cir. 2002).
Nor do I think that the majority’s holding follows from the
three Supreme Court cases it cites. The majority relies
heavily on Lau v. Nichols, 414 U.S. 563 (1974). Lau was a
class-action suit brought against San Francisco Unified
School District officials for violating regulations promulgated
by the Department of Health, Education, and Welfare pursu-
ant to Title VI of the of the Civil Rights Act of 1964, which
prohibited state programs or activities that receive federal
funds from discriminating on the basis of race, color, or
national origin. Id. at 566. The regulation required the
school district, ‘‘[w]here inability to speak and understand the
English language excludes national origin-minority group
children from effective participation in the educational pro-
gram offered by a school district, [to] take affirmative steps
to rectify the language deficiency.’’ Id. at 568. Plaintiffs
claimed that the school district had not given 1,800 students
of Chinese ancestry language instruction, and therefore vio-
lated this regulation. The Court, per Justice Douglas, held
that this regulation was a valid exercise of Congress’s spend-
ing power, as the schools received federal educational funds.
Id. at 569.
Quoting dicta from Lau, the majority states that ‘‘[s]imple
justice requires that public funds, to which taxpayers of all
races contribute, not be spent in any fashion which encour-
ages, entrenches, subsidizes, or results in racial discrimina-
tion.’’ Maj. op. at 14 (internal quotation marks and citation
omitted). The principle the majority quotes from Lau, which
was itself a quotation from a floor speech given by Senator
Hubert Humphrey during the debates on the Civil Rights Act
of 1964, is obvious dicta, and singularly unpersuasive dicta at
that. A policy argument made in a floor statement by a
Senator cannot be the basis of a legal doctrine meant to
restrain the very exercise of policy-making power such an
argument represents. Racial discrimination, in fact, was not
at issue in Lau at all; it was a challenge to a regulation that
prohibited national-origin discrimination. Neither Lau nor
the Supreme Court’s description of Lau in New York v.
6
United States, 505 U.S. at 167, is, as the majority implies,
authority for the notion that Congress may condition any
appropriation on a state’s agreeing to any ‘‘nondiscrimina-
tion’’ rule, because in Lau the school district’s failure to
provide language instruction to foreign-born students bore an
obvious relation to the federal educational appropriations the
school district received. In this case, there is no such rela-
tionship.2
Equally distinguishable is the Supreme Court’s recent deci-
sion in Sabri v. United States, 124 S. Ct. 1941 (2004), also
cited by the majority. In Sabri, the Court held that condi-
tioning federal funds on criminalizing bribery of officials of
state entities that receive at least $10,000 in federal funds was
a valid exercise of Congress’s Spending Clause power. The
Court reasoned that there was a generalized interest linked
to all particular federal appropriations in preventing local
officials from being bribed, because ‘‘bribed officials are un-
trustworthy stewards of federal funds, and corrupt contrac-
tors do not deliver dollar-for-dollar value,’’ id. at 1946, and
because ‘‘Congress was within its prerogative to protect
spending objects from the menace of local administrators on
the take,’’ id. at 1947.
This unexceptional recognition of the link between any
federal appropriation and the federal government’s interest in
ensuring that such an appropriation is not ‘‘frittered away in
graft,’’ id. at 1946, falls far short of establishing the same sort
of link between ‘‘discrimination’’ generally and any federal
appropriation. As with graft, of course, the federal govern-
2 My point is not that the federal funds must be specifically
appropriated for classroom instruction, but that the condition im-
posed on receiving the funds must be necessary and proper to
providing education, regardless of how broad the educational pro-
grams financed by the funds are. That was true in Lau. Because
prohibiting disability discrimination is not necessary and proper to
providing mass transit, Lau is not applicable. The majority’s
explanation that ‘‘[n]othing in Lau suggested that the federal funds
were, or had to be, intended for classroom instruction rather than,
for example, the acquisition of equipment or the construction of
athletic facilities,’’ Maj op. at 14, does not speak to this point.
7
ment may not like discrimination; but preventing graft en-
sures that funds are spent for the particular purposes for
which Congress appropriated them, as opposed to any con-
gressional purpose or ‘‘interest’’ whatsoever. Rampant brib-
ery of WMATA officials, for example, would make it more
difficult for federal funds to do the job of providing mass
transit.3 So far as I can see, and so far as the government
and majority’s reasoning goes, discrimination against WMA-
TA’s employees on the basis of disability would not.4
3 This is the reason the Court did not need to require a connec-
tion between the bribe and the federal money: any bribe, the Court
reasoned, bears a relation to the particular purpose of a grant of
funds (whether it be mass transit, education, or mushroom subsi-
dies). Bribed officials are untrustworthy regardless of the reason
the government appropriates the funds. Thus, my distinction of
Sabri does not, as the majority states, ‘‘overlook[ ]’’, Maj. op. at 14
n.9, the fact that the Court did not require this connection. To the
contrary, it explains why the court did not require it.
4 The majority’s attempt to assert a particular connection be-
tween mass transit and disability discrimination is that ‘‘discrimina-
tion ‘fritter[s] away’ federal funds TTT just like the graft discussed
in Sabri,’’ [Maj. op. at 15], and it is doubtful. The Supreme Court’s
point in Sabri was that bribed officials divert funds toward the
source of the bribe to advance their own personal financial gain,
necessarily away from the congressionally specified purpose for
spending the funds. The fact that such officials are untrustworthy
in this way therefore gave the Court a reason, apart from Con-
gress’s judgment that it did not like graft, to think that such a
condition was necessary and proper to providing any federal funds.
There is no reason to believe that a similar diversion or lack of
trustworthiness, and therefore, a similar connection to the federal
funds, occurs when officials discriminate on the basis of disability
against their employees. Discriminating on the basis of disability
has nothing to do with ‘‘wasting’’ or ‘‘diverting’’ mass transit funds.
To the contrary, requiring WMATA to pay money damages for such
discrimination affirmatively depletes its transportation funds.
There is therefore no reason, apart from Congress’s judgment that
its money should not finance activities it believes morally opprobri-
ous, to think that the disability discrimination ‘‘fritters away’’ funds
8
The final Supreme Court case cited by the majority, Grove
City College v. Bell, 465 U.S. 555 (1984), did not involve the
Spending Clause at all, but instead was a First Amendment
case, id. at 575.5 It therefore sheds little light on the issues
here.
For all of these reasons, I conclude that Congress lacks the
power under the Spending Clause to subject WMATA to suits
for money damages for disability discrimination in employ-
ment.
B. Section 5 of the Fourteenth Amendment
My conclusion as to Congress’s power under the Spending
Clause requires me, unlike the majority, to reach whether
Congress has the power to do the same pursuant to its
enforcement power under section 5 of the Fourteenth Amend-
ment. I would hold that it does not.
Section 5 of the Fourteenth Amendment provides that
‘‘[t]he Congress shall have the power to enforce, by appropri-
ate legislation, the provisions of this article.’’ Although the
power to ‘‘enforce’’ seems by its terms to be limited to
legislation to remedy actual Fourteenth Amendment viola-
tions, see Tennessee v. Lane, 124 S. Ct. 1978, 2009-10 (2004)
(Scalia, J., dissenting), the Supreme Court has held that
‘‘Congress’ power to enforce the Amendment includes the
authority both to remedy and to deter violation of rights
guaranteed thereunder by prohibiting a somewhat broader
swath of conduct, including that which is not itself forbidden
by the Amendment’s text,’’ Bd. of Trustees of the Univ. of
the way graft does. A judgment that an activity is morally wrong is
not a connection between a condition and the funding program
under the Dole test.
5 While the majority says that the Supreme Court in Grove City
‘‘treat[ed] the spending power’’ and implies that the reason this is
so is because Grove City cited Pennhurst State School & Hospital
v. Halderman, 451 U.S. 1 (1981), a Spending Clause case. Maj. op.
at 13. The reference quoted by the majority was in fact a part of
the First Amendment analysis, not a delineation of the reach of the
spending power.
9
Ala. v. Garrett, 531 U.S. 356, 365 (2001) (internal quotation
marks and citation omitted). Those enforcement steps that
reach beyond the scope of the Fourteenth Amendment’s
substantive guarantees, however, ‘‘must exhibit ‘congruence
and proportionality between the injury to be prevented or
remedied and the means adopted to that end.’ ’’ Id. (quoting
City of Boerne v. Flores, 521 U.S. 507, 520 (1997)).
Here, as was the case in Garrett, the constitutional right
Congress is attempting to enforce is Barbour’s Fourteenth
Amendment right to be free from irrational discrimination in
employment on the basis of his disability. See City of Cle-
burne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). The
question becomes, then, whether subjecting WMATA to suits
for money damages for disability discrimination on the basis
of his employment is a ‘‘congruent and proportional’’ remedy
for Barbour’s right. As the Supreme Court held in Garrett,
that requires me to examine whether ‘‘Congress identified a
history and pattern of unconstitutional discrimination TTT
against the disabled’’ to justify the need for such a remedy,
531 U.S. at 368, in particular, a pattern of state discrimination
not ‘‘rationally related to a legitimate governmental purpose,’’
Cleburne, 473 U.S. at 446.
While I confess not to have engaged in a comprehensive
independent review of the history of Rehabilitation Act sec-
tion 504 and § 2000d-7(a)(1), the evidence that Barbour cites
at least seems to fall woefully short of demonstrating any-
thing approaching a widespread pattern of unconstitutional
discrimination against the disabled by the states in general or
WMATA in particular. (The government’s brief does not
address the section 5 issue, only the Spending Clause issue.)
Barbour cites evidence before Congress that he claims dem-
onstrates that ‘‘States were not serving the most severely
disabled’’ as of 1973, the year the Rehabilitation Act was
passed. Br. for Appellee at 26. That falls far short of
establishing the pattern Cleburne requires.
Moreover, the remedies created by the Rehabilitation Act
against the states ‘‘raise the same sort of concerns as to
congruence and proportionality as were found in City of
10
Boerne.’’ Garrett, 531 U.S. at 372. Section 504 of the
Rehabilitation Act provides that ‘‘[n]o otherwise qualified
individual with a disability TTT shall, solely by reason of her
or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination in
any program or activity receiving Federal financial assis-
tance,’’ 29 U.S.C. § 794, without regard to whether such
conduct has a rational basis. This ‘‘accommodation duty far
exceeds what is constitutionally required in that it makes
unlawful a range of alternative responses that would be
reasonable but would fall short of’’ providing benefits to all
persons regardless of their disabilities. Garrett, 531 U.S. at
372. The remedies authorized by the Rehabilitation Act, in
short, sweep far beyond what is constitutionally permissible.
I realize that the Supreme Court recently upheld Title II of
the Americans with Disabilities Act as a valid exercise of
Congress’s section 5 enforcement power in Tennessee v.
Lane, 124 S. Ct. 1978 (2004). But this case is not like Lane.
It is instead very much like Garrett, in which the Supreme
Court held that Congress exceeded its enforcement power
under Title I of the ADA by subjecting states to suits for
money damages for disability discrimination in employment.
531 U.S. at 373-74. Title I concerns discriminating against
the disabled in employment; Lane, in contrast, involved Title
II, which prohibits discrimination against the disabled in
public services, programs, and activities. See Lane, 124 S.
Ct. at 1996 (Ginsburg, J., concurring). That broader scope
meant that the constitutional rights Title II of the ADA
purported to ‘‘enforce’’ in Lane concerned, in addition to
Cleburne-style irrational discrimination, ‘‘a variety of other
basic constitutional guarantees, infringements of which are
subject to more searching judicial review,’’ for example, the
right of access to courts, id. at 1988. This case, in contrast,
only involves, as discussed, Barbour’s right to be free from
irrational discrimination. Barbour’s employment discrimina-
tion suit is more like a Title I than a Title II action. And as
noted, Barbour has not shown that his suit for money dam-
ages is justified by the need to remedy a widespread pattern
11
of state infringement of his right to be free from irrational
employment discrimination.
In sum, I would hold that subjecting WMATA to suits for
money damages for disability discrimination in employment
exceeds Congress’s power under section 5 of the Fourteenth
Amendment. Because Congress had no power either under
the Spending Clause or under the Fourteenth Amendment to
authorize Barbour’s suit for damages, I would hold that
WMATA is immune under the Eleventh Amendment from the
suit. I would accordingly reverse the judgment of the district
court and remand the case with instructions to dismiss the
suit for lack of jurisdiction.