Koslow v. Comm of PA

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

8-21-2002

Koslow v. Comm of PA

Precedential or Non-Precedential: Precedential

Docket No. 01-2782

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PRECEDENTIAL

Filed August 21, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2782

GEORGE KOSLOW,

Appellant

v.

COMMONWEALTH OF PENNSYLVANIA

d/b/a DEPARTMENT OF CORRECTIONS;

DONALD T. VAUGHN;

PHICO SERVICES COMPANY;

COMPSERVICES, INC.

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 97-cv-05951

(Honorable John P. Fullam)

Argued March 5, 2002

Before: SCIRICA and ROSENN, Circuit Judges,

and WARD, District Judge*

(Filed: August 21, 2002)

_________________________________________________________________

* The Honorable Robert J. Ward, United States District Judge for the

Southern District of New York, sitting by designation.

JEFFREY CAMPOLONGO, ESQUIRE

(ARGUED)

THOMAS M. HOLLAND, ESQUIRE

Grace Hall

1522 Locust Street

Philadelphia, Pennsylvania 19102

Attorneys for Appellant

SETH M. GALANTER, ESQUIRE

(ARGUED)

SARAH E. HARRINGTON, ESQUIRE

United States Department of Justice

Appellate Section

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Attorneys for Intervenor-Appellant,

United States of America

JOHN G. KNORR, III, ESQUIRE

(ARGUED)

Office of Attorney General

of Pennsylvania

Department of Justice

Strawberry Square, 15th Floor

Harrisburg, Pennsylvania 17120

Attorney for Appellees,

Commonwealth of Pennsylvania

d/b/a Department of Corrections;

Donald T. Vaughn

ELIZABETH A. MALLOY, ESQUIRE

(ARGUED)

Klett, Rooney, Lieber & Schorling

Two Logan Square, 12th Floor

18th and Arch Streets

Philadelphia, Pennsylvania 19103

Attorney for Appellee,

PHICO Services Company

2

HOWARD R. FLAXMAN, ESQUIRE

(ARGUED)

Fox, Rothschild, O’Brien & Frankel

2000 Market Street, 10th Floor

Philadelphia, Pennsylvania 19103

Attorney for Appellee,

CompServices, Inc.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this disability discrimination case under the

Rehabilitation Act, the principal issue on appeal is whether

the Commonwealth of Pennsylvania waived its sovereign

immunity by accepting certain federal funds for the

Department of Corrections. We will reverse in part and

affirm in part.

I.

In October 1988, George Koslow was hired by the

Pennsylvania Department of Corrections as a water

treatment plant supervisor for the State Correctional

Institute in Graterford, Pennsylvania ("SCI-Graterford"), a

state prison receiving federal funds under the State

Criminal Alien Assistance Program (SCAAP). On June 6,

1995, Koslow injured his lower back loading eighty-pound

salt bags into SCI-Graterford’s industrial water softener,

then reinjured his back performing the same task in

September 1995 and November 1996. On each occasion

Koslow notified SCI-Graterford’s Human Resources

Department of his condition, requesting relief from lifting

the salt bags and walking stairs. On June 10, 1997, after

an investigation, SCI-Graterford officials informed Koslow

he either had to return to work at full duty or be placed on

workers’ compensation leave. Koslow chose the former,

remaining in a position at work that required stair

climbing. On February 29, 2000, he was dismissed for

being unable to perform "essential functions" of his job.1

_________________________________________________________________

1. Because of the procedural posture of the case, the record is unclear

regarding what "essential functions" Koslow was unable to perform.

3

Koslow alleged the Commonwealth of Pennsylvania and

SCI-Graterford Superintendent Donald Vaughn (collectively,

the "Commonwealth defendants") refused to accommodate

his disability, violating the Americans With Disabilities Act

(ADA), 42 U.S.C. S 12101 et seq., the Rehabilitation Act, 29

U.S.C. S 701 et seq., and the Pennsylvania Human

Relations Act (PHRA), 42 Pa. Cons. Stat. Ann. S 951 et seq.

Koslow also alleged PHICO Services Co. and CompServices,

Inc., his past and present worker’s compensation

administrators, had wrongfully processed his compensation

claims.2 He sought reinstatement and damages.

The District Court granted summary judgment to PHICO

and CompServices on Koslow’s PHRA and ADA claims,

finding that as "agents" of Koslow’s "employers," they

played no decisionmaking role regarding Koslow’s

employment. The District Court stayed the remainder of

Koslow’s action pending resolution of Board of Trustees of

the University of Alabama v. Garrett, 531 U.S. 356, 121 S.

Ct. 955 (2001), then before the United States Supreme

Court, which held Congress’s abrogation of states’ Eleventh

Amendment immunity under Title I of the ADA was invalid.

Id. at 965-68.

With the benefit of Garrett and after further briefing, the

District Court granted the Commonwealth defendants’

motions for summary judgment on Koslow’s ADA claims.

The District Court found neither the ADA nor the

Rehabilitation Act abrogated the Commonwealth’s sovereign

immunity. It also held the Commonwealth defendants had

not waived sovereign immunity on the Rehabilitation Act

claims. Therefore, Koslow could not state valid Title I claims

against the Department of Corrections under either statute.

Nor, the District Court found, could Koslow pursue

injunctive relief against SCI-Graterford Superintendent

Vaughn under Title I of the ADA. After disposing of Koslow’s

Title I claims, the District Court also dismissed Koslow’s

claim under Title II of the ADA. The latter claim is not

pursued on appeal.3 As noted, the District Court had

_________________________________________________________________

2. From 1995 through 1997, PHICO acted as SCI-Graterford’s agent in

administering its workers’ compensation scheme. In December 1997,

CompServices replaced PHICO.

3. Title I of the ADA provides that "[n]o covered entity shall discriminate

against a qualified individual with a disability because of the disability

4

already dismissed Koslow’s PHRA claims against PHICO

and CompServices, holding they had played no

"decisionmaking" role. This appeal focuses solely on

Koslow’s Rehabilitation Act claims against the

Commonwealth defendants, his Title I claim for injunctive

relief under the ADA against SCI-Graterford Superintendent

Vaughn, and his PHRA claims against PHICO and

CompServices.

II.

The District Court had jurisdiction over Koslow’s federal

claims under 28 U.S.C. SS 1331 and 1343 and

_________________________________________________________________

of such individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment." 42

U.S.C. S 12112(a). Koslow asserted ADA claims under Title I

(employment) and Title II-A (public services). As noted, in Garrett, the

Supreme Court held Congress’s abrogation of states’ Eleventh

Amendment immunity under Title I of the ADA was invalid. 121 S. Ct.

at 965-68. But the Supreme Court held that state officials could be

subjected to federal court actions for injunctive relief in violation of Title

I. Id. at 968 n.9 ("Those standards can be enforced by the United States

in actions for money damages as well as by private individuals in actions

for injunctive relief under Ex parte Young, 209 U.S. 123 (1908)).

As to ADA claims under Title II, the District Court offered two

justifications for its dismissal. First, the Court held Title I of the ADA is

the "sole avenue for pursuing employment discrimination claims based

on disability. Title I expressly deals with employment discrimination,

while Title II deals with ‘services, programs, or activities of a public

entity’ . . ." Op. at 2 (suggesting this Court "avoided" deciding whether

Title II of the ADA allows for an employment discrimination claim based

on disability in Lavia v. Pennsylvania, 224 F.3d 190, 194 n.2 (3d Cir.

2000)) (citations omitted). Given Koslow’s failure to appeal this issue, we

reserve consideration of this point. The District Court also found that in

enacting Title II of the ADA, Congress had not validly abrogated states’

immunity. Id. at 2-3. We need not reach this issue. Koslow does contest

the dismissal of his injunctive relief claims brought against SCI-

Graterford Superintendent Vaughn under Title I.

Section 504 of the Rehabilitation Act and Title II of the ADA offer

similar protections for persons with disabilities. Although Title II applies

to all state and municipal governments, S 504 applies only to those

agencies or departments receiving federal funds, andS 504 applies only

during the periods during which the funds are accepted.

5

supplemental jurisdiction on his state law claims under 28

U.S.C. S 1367. We have jurisdiction under 28 U.S.C.

S 1291.

III.

Certain background information on the federal fiscal

connection to the Pennsylvania Department of Corrections,

Koslow’s employer, is essential here. The Commonwealth of

Pennsylvania receives federal funds for various designated

purposes. From November 1996 through February 2000, at

least forty-two federal grants were provided to the

Pennsylvania Department of Corrections.4 The

Commonwealth identifies twenty-five of those federal grants

as "programs with multiple years of funding." One such

"multiple year" program is the State Criminal Alien

Assistance Program, originally established to alleviate costs

states incur when illegal aliens commit state crimes and are

imprisoned in state correctional facilities. Despite its stated

purpose, funds received under SCAAP are not necessarily

directed by the Department of Corrections toward costs for

imprisoned illegal aliens. Nor need the Department of

Corrections track these funds or report to the federal

government where the funds are allocated. 62 Fed. Reg.

35,232 (June 30, 1997).

The record demonstrates the Commonwealth of

Pennsylvania accepted federal funds under SCAAP in 1996,

1997, 1998, and 1999, the relevant dates of this litigation.

The parties stipulated the Commonwealth disbursed all of

those funds to the Department of Corrections.5 Despite the

stipulation, the exact amount of the federal contribution

_________________________________________________________________

4. On February 26, 2002, during a Pennsylvania Senate Appropriations

Committee Hearing, one senator testified 38,425 prisoners were then

incarcerated in Commonwealth prisons, at an approximate aggregate

annual cost to the Commonwealth of $1,075,900,000 (estimating

$28,000 per prisoner). For fiscal year 2002-03, the proposed budget for

the Pennsylvania Department of Corrections is $1,295,214,000.

5. The Department of Corrections also receives federal grant funds from

the United States Department of Education, but those funds are

managed and administered by a separate Department of Corrections

office.

6

under SCAAP to the Department of Corrections or to SCI-

Graterford is not part of the record.

IV.

The most difficult issue in this appeal is whether the

Commonwealth defendants waived their sovereign

immunity to suit on Koslow’s federal Rehabilitation Act

claims. There are three related, yet separate and

independent, issues -- whether the Commonwealth’s

acceptance of SCAAP funds means it waived its Eleventh

Amendment immunity for Rehabilitation Act suits against a

department receiving those funds; whether the

Rehabilitation Act, especially 42 U.S.C. S 2000d-7, imposes

an "unconstitutional condition" on the Commonwealth’s

receipt of federal funds; and whether the Rehabilitation Act

is valid legislation under the Spending Clause. We exercise

plenary review over these questions of law, Blanciak v.

Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996),

and, more generally, over the grant of summary judgment.

Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir. 2001).

A.

The Eleventh Amendment to the United States

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. The Eleventh Amendment does not

explicitly apply to cases that do not involve "Citizens of

another State" or "Citizens or Subjects of any Foreign

State." See Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

54 (1996) ("the text of the Amendment would appear to

restrict only the Article III diversity jurisdiction of the

federal courts"). But as the Supreme Court has held for

over a century, see Hans v. Louisiana, 134 U.S. 1, 13

(1890), the Eleventh Amendment confirms a broader

"background principle of state sovereign immunity."

Seminole Tribe, 517 U.S. at 72.

7

As developed, the Eleventh Amendment provides states

with immunity not only from suits brought by citizens of

other states, but also from suits brought by their own

citizens. Hans, 134 U.S. at 13-14. Recent cases have

emphasized the Eleventh Amendment’s embodiment of this

common law doctrine. E.g., Alden v. Maine, 527 U.S. 706,

713 (1999); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 145-46 (1993) (declaring the Eleventh

Amendment a "fundamental constitutional protection . . .

rooted in a recognition that the States, although a union,

maintain certain attributes of sovereignty, including

sovereign immunity . . . [and] respect owed them as

members of the federation").

But a state’s Eleventh Amendment protection from

federal suits -- whether brought by citizens of their state or

another -- is not absolute. Two established exceptions to

the Eleventh Amendment’s bar permit individuals to sue

states. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 670 (1999). First, Congress

may authorize such a suit under its power "to enforce the

Fourteenth Amendment -- an Amendment enacted after the

Eleventh Amendment and specifically designed to alter the

federal-state balance." Id. (citing Fitzpatrick v. Bitzer, 427

U.S. 445 (1976)). Under this exception, Congress abrogates

a state’s sovereign immunity "when it both unequivocally

intends to do so and ‘act[s] pursuant to a valid grant of

constitutional authority.’ " Garrett, 531 U.S. at 363 (quoting

Kimel v. Bd. of Regents, 528 U.S. 62, 73 (2000)). Second, a

state may waive its sovereign immunity by consenting to

suit. Coll. Sav. Bank, 527 U.S. at 670 (citing Clark v.

Barnard, 108 U.S. 436 (1883)); Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 238 (1985). Of course, in addition,

a person seeking purely prospective relief against state

officials for ongoing violations of federal law may sue under

the "legal fiction" of Ex parte Young, 209 U.S. 123, 159-60

(1908), despite the text of the Eleventh Amendment. See

Alden, 527 U.S. at 757.

At issue here is whether plaintiffs’ Rehabilitation Act

claims fall within one of these exceptions. Section 504 of

the Rehabilitation Act prohibits discrimination on the basis

of disability in federally funded programs or activities: "No

8

otherwise qualified individual with a disability in the United

States . . . 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 under any program or

activity receiving Federal financial assistance . . . ." 29

U.S.C. S 794(a). In its definitional section, the statute

provides:

For the purposes of this section, the term "program or

activity" means all the operations of --

(1)(A) a department, agency, special purpose district,

or other instrumentality of a State or local

government; or

(B) the entity of such State or local government that

distributes such assistance and each such

department or agency (and each other State or local

government agency) to which the assistance is

extended, in the case of assistance to a State or local

government;

. . . any part of which is extended Federal financial

assistance.

29 U.S.C. S 794(b).

There have been many suits under the Rehabilitation Act

against sovereign states. Indeed, "[t]he Rehabilitation Act

has a long history of scrutiny under the Eleventh

Amendment." Nihiser v. Ohio EPA, 269 F.3d 626, 628 (6th

Cir. 2001). In Atascadero State Hospital, the Supreme

Court held that despite the language of S 504, it was not

sufficiently clear that Congress intended states’ receipt of

federal funds under the statute to constitute a waiver of

Eleventh Amendment immunity. 473 U.S. at 247 (finding

the Act fell "far 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"). The next year, Congress amended S 504 to

provide specifically 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 . . . ." 42

U.S.C. S 2000d-7(a)(1).

9

In its sovereign immunity analysis, the District Court

rejected the possibility that Congress had validly abrogated

the Commonwealth’s immunity under the Fourteenth

Amendment. The District Court held the 1986 amendment

to the Rehabilitation Act represented an "unequivocal[ ]

express[ion]" of Congress’s desire to abrogate states’

immunity. Op. at 4. But this factor alone, the court held,

was insufficient to abrogate the Department of Corrections’s

immunity under the Eleventh Amendment:

The second part of the test [for abrogation], however, is

"congruence and proportionality" -- that is, whether

Congress has identified a "pattern of discrimination by

the States which violates the Fourteenth Amendment,

and [whether] the remedy imposed by Congress .. . is

congruent and proportional to the targeted violation."

Garrett, 121 S. Ct. at 967-68. No specific

unconstitutional conduct by the states was identified

by Congress, and therefore S 504 must fall victim to the

same fate that has lately befallen other

antidiscrimination statutes insofar as they are applied

to the states.

Op. at 4.6

The District Court then considered whether the

Commonwealth had waived its sovereign immunity by

consenting to suit. The District Court rejected this

possibility as well:

The only way that plaintiff can assert a claim under

S 504, then, is if the Commonwealth of Pennsylvania

has waived its sovereign immunity. It clearly has not

done so explicitly, as there is no legislation that can be

so construed. In order for Pennsylvania to have

implicitly waived its immunity by accepting federal

funds, the conditions on the grant of money must be

unambiguously expressed by Congress. Congress must

also be specific; a "general authorization" does not

suffice. . . . As plaintiff does not argue that there is any

_________________________________________________________________

6. In support, the District Court cited Garrett, Kimel, City of Boerne v.

Flores, 521 U.S. 507 (1997), and Chittister v. Department of Community

and Economic Development, 226 F.3d 223 (3d Cir. 2000). Op. at 4-5.

10

connection between federal funds received by the state

and his Rehabilitation Act claim, I hold that the

Commonwealth of Pennsylvania has not waived its

sovereign immunity in this case.

Op. at 5-7. In reaching this result, the District Court

endorsed the dissenting opinion in Jim C. v. United States,

235 F.3d 1079, 1082-85 (8th Cir. 2000) (en banc)

(Bowman, J., dissenting), which required "a nexus between

the purposes of the federal funding and the conditions

placed on their receipt." Op. at 6.

We reserve consideration on the abrogation issue. But we

disagree with the able District Court’s conclusions on the

Commonwealth’s waiver of sovereign immunity. The

Supreme Court has recognized S 504 of the Rehabilitation

Act, following the 1986 amendment, to be an

"unambiguous waiver of the State’s Eleventh Amendment

immunity." Lane v. Pena, 518 U.S. 187, 200 (1996). As

noted, the 1986 amendment was enacted in response to the

Supreme Court’s decision in Atascadero State Hospital v.

Scanlon, 473 U.S. 234 (1985), which held that"mere receipt

of federal funds" was insufficient to constitute a waiver of

sovereign immunity to Rehabilitation Act claims. Id. at 246.

The Atascadero State Hospital Court stated that if a statute

"manifest[s] a clear intent to condition participation in the

programs funded under the Act on a State’s waiver of its

constitutional immunity," federal courts would have

jurisdiction over claims against states accepting federal

funds. Id. at 247.

It appears that Congress responded to the Supreme

Court’s direction. Section 2000d-7 of the Rehabilitation Act,7

as amended, represents a "clear intention," as mandated by

Atascadero State Hospital. Enacting the amendment to

S 2000d-7, Congress put states on notice that by accepting

federal funds under the Rehabilitation Act, they would

_________________________________________________________________

7. This appeal implicates several statutes. Section 2000d-7, as amended,

provides states cannot be immune under the Eleventh Amendment from

suits in federal court under S 504 of the Rehabilitation Act. Section 504

of the Rehabilitation Act, in turn, prohibits discrimination against

persons with disabilities under "any program or activity receiving Federal

financial assistance." Section 504 is codified at 29 U.S.C. S 704(a).

11

waive their Eleventh Amendment immunity to

Rehabilitation Act claims.8 Accord United States Dep’t of

Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605

(1986) ("Under . . . Title VI, Title IX, andS 504, Congress

enters into an arrangement in the nature of a contract with

the recipients of the funds: the recipient’s acceptance of the

funds triggers coverage under the nondiscrimination

provision.").9 In Lane, the Supreme Court recognized the

"care with which Congress responded to our decision in

Atascadero by crafting an unambiguous waiver of the

States’ Eleventh Amendment immunity." 518 U.S. at 200.

Six other courts of appeals have found under the plain

language of the amended Rehabilitation Act statute that

accepting federal funds results in a waiver of Eleventh

Amendment immunity for the "program or agency" receiving

the funds. Nihiser, 269 F.3d at 628-29; Jim C., 235 F.3d at

1081-82; Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir.

2000); Pederson v. La. St. Univ., 213 F.3d 858, 875-76 (5th

Cir. 2000); Sandoval v. Hagan, 197 F.3d 484, 493-94 (11th

Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001);

Litman v. George Mason Univ., 186 F.3d 544, 554 (4th Cir.

1999); Clark v. California, 123 F.3d 1267, 1271 (9th Cir.

1997). We agree with their conclusions.

Under the statutory definitions in the Rehabilitation Act,

the state, as a whole, cannot be a "program or activity." As

other courts have noted, if the entire state government were

_________________________________________________________________

8. To reiterate, the 1986 amendment provides:"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 . . . ." 42 U.S.C.S 2000d-7(a)(1).

9. While the 1986 amendment was under consideration, the Department

of Justice stated to Congress, "To the extent that the proposed

amendment is grounded on congressional spending powers, [it] makes it

clear to states that their receipt of Federal funds constitutes a waiver of

their [E]leventh [A]mendment immunity." 132 CONG. REC. 28,624(1986).

When signing the bill, President Reagan explained the Rehabilitation Act

"subjects states, as a condition of their receipt of federal financial

assistance, to suits for violation of federal laws prohibiting

discrimination on the basis of handicap, race, age, or sex to the same

extent as any other public or private entities." 22 Weekly Comp. Pres.

Doc. 1421 (Oct. 27, 1986), reprinted in 1986 U.S.C.C.A.N. 3554.

12

subject to S 504 whenever one of its components received

federal funds, subsection (b)(1)(B) would be redundant. See

Jim C., 235 F.3d at 1081 n.3 (noting that under the flawed

interpretation, "both the distributing and receiving state

entities would already be covered under (b)(1)(A) whenever

either receives federal funds"); Lightbourn v. County of El

Paso, 118 F.3d 421, 427 (5th Cir. 1997); Schroeder v. City

of Chicago, 927 F.2d 957, 962 (7th Cir. 1991). But state

departments or agencies receiving federal funds, like the

Pennsylvania Department of Corrections, qualify under the

relevant statutory definition. 29 U.S.C. S 794(b)(1)(A).

Therefore, if a state accepts federal funds for a specific

department or agency, it voluntarily waives sovereign

immunity for Rehabilitation Act claims against the

department or agency -- but only against that department

or agency. See Coll. Sav. Bank, 527 U.S. at 675 (describing

these determinations as "stringent," in part because of the

Eleventh Amendment’s important federal purpose); see also

Jim C., 235 F.3d at 1081-82:

To avoid the effect of Section 504 . . . the State would

be required to sacrifice federal funds only for that

department. This requirement is comparable to the

ordinary quid pro quo that the Supreme Court has

repeatedly approved; the State is offered federal funds

for some activities, but in return, it is required to meet

certain federal requirements in carrying out those

activities.

(citations omitted).10

_________________________________________________________________

10. In two recent cases, the courts held that a state is not protected by

sovereign immunity against a suit against state officials by a person

claiming benefits promised under the federal Medicaid law. See Westside

Mothers v. Haveman, 289 F.3d 852, 857 (6th Cir. 2002) ("If a state does

choose to participate [in the Medicaid program], Congress may then

condition receipt of federal moneys upon compliance with federal and

statutory directives . . . . A state can decline to participate in Medicaid.")

(quotations and citations omitted); Antrican v. Odom, 290 F.3d 178, 190

(4th Cir. 2002) ("North Carolina elected to participate in the federal

Medicaid program and, therefore, to be bound by the requirements of the

Medicaid Act. In doing so, the State agreed to the conditions of

participation, including the possibility that if it failed to conform to the

program as established by federal law, it faced the risk of being ordered

by a federal court to correct the problems in its system. If the State did

not want to face this federal involvement, it was free to decline federal

funds . . . or to decline to operate such a program at all.").

13

In this sense, the scope of the Eleventh Amendment

immunity waiver directly correlates to the state department

or agency receiving federal financial assistance. The

Commonwealth of Pennsylvania arguably could limit its

waiver by foregoing certain federal funds. The Court of

Appeals for the Eighth Circuit explained:

A State and its instrumentalities can avoid Section

504’s waiver requirement on a piecemeal basis, by

simply accepting federal funds for some departments

and declining them for others. The State is accordingly

not required to renounce all federal funding to shield

chosen state agencies from compliance with Section

504.

Jim C., 235 F.3d at 1081. But the Rehabilitation Act’s

definition of "program or activity" sweeps"all the

operations" of a department or agency receiving federal

financial assistance under the Act’s coverage. 29 U.S.C.

S 794(b). Although a particular "activity" (e.g., SCAAP) -- or

the conduct of that "activity" (e.g., funding inmate

educational programs) -- might be the state’s only link to

federal funds, the waiver under S 2000d-7 is structural. It

applies to "all the operations" of the department or agency

receiving federal funds (i.e., the Pennsylvania Department

of Corrections).

A state’s waiver of sovereign immunity is not lightly

granted. The Supreme Court has cautioned: "In deciding

whether a State has waived its constitutional protection

under the Eleventh Amendment, we will find waiver only

where stated ‘by the most express language or by such

overwhelming implications from the text as [will] leave no

room for any other reasonable construction.’ " Edelman v.

Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson

Distilling Co., 213 U.S. 151, 171 (1909)). Mere participation

in a federal program is not sufficient to waive immunity. Id.

at 673. But where a state participates in a federal financial

assistance program "in light of the existing state of the

law," the state is charged with awareness that accepting

federal funds can result in the waiver of Eleventh

Amendment immunity. Id. at 687. In Lane , the Supreme

Court said S 2000d-7 represents "the most express

language" of waiver of Eleventh Amendment immunity. 518

14

U.S. at 200. The Commonwealth of Pennsylvania could

reasonably expect that providing federal funds to the

Department of Corrections could lead to the waiver of

Eleventh Amendment immunity against Rehabilitation Act

claims. Accord Stanley, 213 F.3d at 344 ("[T]he ADA and

the Rehabilitation Act are identical for purposes ofS 5. But

the Rehabilitation Act also is a condition on the receipt of

federal funds . . . . [T]he Rehabilitation Act is enforceable in

federal court against recipients of federal largess.").

As noted, the District Court relied on the dissenting

opinion from Jim C. in rejecting Koslow’s claim. The en

banc Court of Appeals for the Eighth Circuit in Jim C.

rejected this analysis, holding, "Congress may require a

waiver of state sovereign immunity as a condition for

receiving federal funds, even though Congress could not

order the waiver directly." 235 F.3d at 1081. We agree.11

The Commonwealth of Pennsylvania accepted federal

financial assistance under SCAAP, and provided these

federal funds to the Department of Corrections. Therefore,

the Commonwealth of Pennsylvania waived immunity for

S 504 claims against its Department of Corrections under

the Rehabilitation Act. Like the majority of courts that have

considered the issue, we hold the Commonwealth’s

acceptance of Rehabilitation Act funds falls under the

second recognized exception to Eleventh Amendment

immunity.12

_________________________________________________________________

11. The District Court and the dissenting judge in Jim C. also focused on

the possible "coercion" engendered by the federal funding of particular

state programs or activities. Those arguments are considered in the

subsequent section on "unconstitutional conditions." The District Court’s

adoption of a "nexus" requirement under South Carolina v. Dole, 483

U.S. 203 (1987), is treated in the section relating to the Spending

Clause.

12. In Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98

(2d Cir. 2001), the Court of Appeals for the Second Circuit held that

S 504 of the Rehabilitation Act "constitutes a clear expression of

Congress’s intent to condition acceptance of federal funds on a state’s

waiver of its Eleventh Amendment immunity." Id. at 113. But the court

found the waiver was ineffective because in 1995, the last date of

discrimination, the state agency did not "know" Title II was effective and

15

B.

The Commonwealth defendants also urge affirmance on

two related grounds. First, they contend the provisions

placed on their receipt of Rehabilitation Act funds

constitute "unconstitutional conditions," requiring a

"surrender" of constitutionally protected rights. Cf. Frost &

Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593-94

(1926) ("[T]he state . . . may not impose conditions which

require the relinquishment of constitutional rights.. . . It is

inconceivable that the guaranties embedded in the

Constitution of the United States may thus be manipulated

out of existence."). Because the federal government is not

required to provide states with funds does not mean it may

condition distributions on arguably unconstitutional

grounds. E.g., Speiser v. Randall, 357 U.S. 513, 526 (1958)

(the government may not act indirectly "to produce a result

which [it] could not command directly"). We exercise

plenary review.

The "constitutionally protected right" the Commonwealth

defendants contend they must "sacrifice" upon accepting

federal funds is their Eleventh Amendment immunity from

suits under the Rehabilitation Act. The Commonwealth

defendants draw analogies to select seminal -- and dated --

"unconstitutional conditions" cases,13 when the Supreme

Court struck down states’ attempts to force certain litigants

to waive immunity from suit in state court. Cf. Barron v.

Burnside, 121 U.S. 186, 199 (1887) ("As the Iowa statute

makes the right to a permit dependent on the surrender by

_________________________________________________________________

would therefore believe Title II’s abrogation for Title II claims made

S 504’s waiver redundant. Id. at 114. This argument was not briefed or

argued before the District Court. We note, however, that the ADA was

not enacted to alter existing causes of action. See 42 U.S.C. S 12201(b)

(retaining existing causes of action). Therefore, the "clear intent to

condition participation in the programs funded," required by Atascadero,

473 U.S. at 247, ensured the Commonwealth of Pennsylvania knew that

by accepting certain funds under the Rehabilitation Act for certain

departments or agencies, it waived immunity from suit on Rehabilitation

Act claims for those entities.

13. Of course, the "unconstitutional conditions" doctrine boasts a long

history reaching into more contemporary decisions.

16

the foreign corporation of a privilege secured to it by the

constitution and laws of the United States, the statute

requiring the permit must be held to be void."); Home Ins.

Co. v. Morse, 87 U.S. 445, 458 (1874) ("The Constitution of

the United States secures to citizens of another State than

that in which suit is brought an absolute right to remove

their cases into the Federal court upon compliance with the

terms of the act of 1789. The statute of Wisconsin is an

obstruction to this right, is repugnant to the Constitution of

the United States and the laws in pursuance thereof, and

is illegal and void.").

More recently, the Supreme Court held Congress may

condition the receipt of federal funds on a state’s

relinquishment of certain immunities. E.g., Alden, 527 U.S.

at 755 ("the Federal Government [does not] lack the

authority or means to seek the States’ voluntary consent to

private suits"); Coll. Sav. Bank, 527 U.S. at 686 (allowing

Congress to condition the exercise of an Article I power on

a state’s agreement to relinquish Eleventh Amendment

immunity). The Eleventh Amendment issue the

Commonwealth defendants now raise was not precisely

before the Supreme Court in Alden or College Savings Bank.14

Nonetheless, we believe conditioning federal funds on the

waiver of sovereign immunity under the Eleventh

Amendment is not unconstitutional per se. The

"unconstitutional conditions" doctrine is based on the

proposition that government incentives may be inherently

coercive. See Frost & Frost Trucking Co., 271 U.S. at 593

("In reality, the carrier is given no choice, except a choice

between the rock and the whirlpool -- an option to forego

_________________________________________________________________

14. Alden, which principally addressed Congress’s Article I powers of

abrogation, did not involve the receipt of federal funds under the

Rehabilitation Act, but a state’s immunity from suit in its own courts.

Nevertheless, the Alden Court reiterated,"[W]e have not questioned the

general proposition that a State may waive its sovereign immunity and

consent to suit." 537 U.S. at 737 (citing Seminole Tribe, 517 U.S. at 65)).

College Savings Bank, in which the Supreme Court rejected petitioner’s

argument that a state had "impliedly" or "constructively" waived its

immunity from Lanham Act suits in federal court, 527 U.S. at 676-77,

recognized that an "unequivocal" waiver of a state’s sovereign immunity

was constitutionally possible. Id. at 680-81.

17

a privilege which may be vital to his livelihood or submit to

a requirement which may constitute an intolerable

burden."). But the Supreme Court has not yet applied the

"unconstitutional conditions" doctrine to cases between two

sovereigns. Unlike private persons, states have the

resources to serve their citizens even if the federal

government, through economic incentives, encourages a

particular result. Cf. New York v. United States , 505 U.S.

144, 171-72 (1992) ("Where the recipient of federal funds is

a State, as is not unusual today, the conditions attached to

the funds by Congress may influence a State’s legislative

choices."); Dole, 483 U.S. at 210-11 (Congress could

influence states’ authority over the legal drinking age

because "[w]ere South Dakota to succumb to the

blandishments offered by Congress and raise its drinking

age to 21, the State’s action in so doing would not violate

the constitutional rights of anyone"). A state’s political

powers -- not the least of which is the power to levy taxes

on its citizens -- help ensure the federal government does

not "coerce" the state through economic "encouragement."

An individual citizen, in contrast, lacks these formidable

institutional resources.

As noted, the Commonwealth could avoid S 504 claims

against the Department of Corrections by declining all

federal funds to the Department of Corrections. Though

this "sacrifice" would doubtless result in some fiscal

hardship -- and possibly political consequences-- it is a

free and deliberate choice by the Commonwealth that does

not rise to the level of an "unconstitutional condition." The

Commonwealth remains free to make the choice: it may

decline federal aid to the Department of Corrections, but

having accepted the federal funds, it is bound by conditions

of the Rehabilitation Act. By accepting SCAAP funds, the

Commonwealth opens the Department of Corrections to

suits under the Rehabilitation Act. For these reasons, we

reject the contention that the receipt of federal funds

constitutes "surrender" of Eleventh Amendment immunity

and is therefore an "unconstitutional condition."15

_________________________________________________________________

15. The parties dispute the authority of Petty v. Tennessee-Missouri

Bridge Commission, 359 U.S. 275 (1959), where the Supreme Court

18

C.

The Commonwealth defendants also maintain the

conditions placed on the receipt of Rehabilitation Act funds

are so "unrelated" to the "purpose" of the federal funds as

to violate the Spending Clause. U.S. CONST. art. I, S 8, cl. 1.

Specifically, the Commonwealth defendants suggest the

federal government’s interest in particular programs or

projects of the Department of Corrections is too attenuated

from the "general" waiver of immunity respecting

Rehabilitation Act claims. We exercise plenary review over

this question of law.

Federal statutes are presumed constitutional. Reno v.

Condon, 528 U.S. 141, 147 (2000); Union Pac. R.R. Co. v.

United States, 99 U.S. (9 Otto) 700, 718 (1878).

Nevertheless, Congress’s spending power is subject to

certain restrictions. United States v. Butler , 297 U.S. 1, 78

(1936). Spending Clause legislation must: (1) pursue the

_________________________________________________________________

upheld Congress’s acquiescence to a bi-state compact between

Tennessee and Missouri based on the states’ agreement to confer federal

jurisdiction on claims against the compact. Id. at 277, 281-82. If

Congress can never require a state to waive Eleventh Amendment

immunity in exchange for a federal benefit, Petty would have been

decided differently. The Commonwealth defendants seek to distinguish

Petty, claiming it involved three "sovereigns" and is inapposite. But if

Congress can constitutionally condition a two-state gratuity for a joint

agency, as the Supreme Court said it could in Petty, it surely can do so

for one state and one of its agencies.

It is clear that Congress’s decision to disburse federal funds may be

coupled with preconditions of acceptance. In MCI Telecommunications

Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491 (2001), we said, "[B]oth

the grant of consent to form an interstate compact and the disbursement

of federal monies are congressionally bestowed gifts or gratuities, which

Congress is under no obligation to make, which a state is not otherwise

entitled to receive, and to which Congress can attach whatever

conditions it chooses." Id. at 505. We also noted that in Commerce

Clause cases, "the authority to regulate local telecommunications is a

gratuity to which Congress may attach conditions, including a waiver of

immunity to suit in federal court. Thus, the submission to suit in federal

court . . . is valid as a waiver, conditioned on the acceptance of a

gratuity or gift, as permitted by College Savings." Id. at 509. On balance,

we believe Petty and MCI Telecommunications support our conclusion.

19

general welfare; (2) impose unambiguous conditions on

states, so they can exercise choices knowingly and with

awareness of the consequences; (3) impose conditions

related to federal interests in the program; and (4) not

induce unconstitutional action. Dole, 483 U.S. at 207-08,

210.

The District Court found no "connection between"

Rehabilitation Act funds received by the Department of

Corrections and Koslow’s discrimination claim.16 On appeal,

the Commonwealth defendants contend an Eleventh

Amendment waiver must be specifically "tailored" to a

particular federal interest. Because Koslow has purportedly

failed to demonstrate a federal interest in SCAAP funds

received by the Pennsylvania Department of Corrections,

the Commonwealth defendants contend S 504 is

demonstrably unconstitutional under the Spending Clause.

Cf. Jim C., 235 F.3d at 1084 (Bowman, J., dissenting)

(quotation and citation omitted).

We disagree. The Supreme Court in Dole declined to

"define the outer parameters of the ‘germaneness’ or

‘relatedness’ limitation on the imposition of conditions

under the spending power." 483 U.S. at 208 n.3. Therefore,

one need only identify a discernible relationship imposed by

a Rehabilitation Act condition on a "department or agency"

and a federal interest in a program it funds. Through the

Rehabilitation Act, Congress has expressed a clear interest

in eliminating disability-based discrimination in state

departments or agencies. Alexander v. Choate, 469 U.S.

287, 295-97 (1985). That interest, which is undeniably

significant and clearly reflected in the legislative history,

flows with every dollar spent by a department or agency

receiving federal funds. The waiver of the Commonwealth’s

immunity from Rehabilitation Act claims by Department of

Corrections employees furthers that interest directly.

Moreover, S 504 governs only a "program or activity"

receiving federal funds. To put it another way, the waiver of

immunity conditioned on receipt of Rehabilitation Act funds

applies on an agency-by-agency, or a department-by-

_________________________________________________________________

16. The District Court did not explicitly engage in the Dole analysis.

20

department, basis. 29 U.S.C. S 794(b).17 This limitation

helps ensure the waiver accords with the "relatedness"

requirement articulated in Dole. The Commonwealth

defendants accepted funds under SCAAP. Rehabilitation Act

funds received by specific departments or agencies are not

tracked. For our purposes, all funds received by the

Department of Corrections under the Rehabilitation Act are

fungible. It is virtually impossible to determine whether

federal dollars paid for Koslow’s salary or any benefits he

received. Cf. Hoxworth v. Blinder, Robinson & Co., Inc., 903

F.2d 186, 195 (3d Cir. 1990) ("Legally as well as

economically, money is fungible.").

Both Title VI and Title IX, which have been upheld as

valid Spending Clause legislation, prohibit race and sex

discrimination by "programs" receiving federal funds. E.g.,

Grove City Coll. v. Bell, 465 U.S. 555, 571 n.21 (1984)

(finding employees who work in an education program

receiving federal assistance are protected under Title IX

"even if their salaries are not funded by federal money"

(quotations and citations omitted)); Lau v. Nichols, 414 U.S.

563, 569 (1974) ("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.") (citations omitted) (Title

VI).18 Similarly, the conditions imposed on the

Commonwealth defendants for accepting funds under

SCAAP do not abridge the Spending Clause.

For these reasons, Koslow’s Rehabilitation Act claim

against the Pennsylvania Department of Corrections is not

constitutionally barred.

_________________________________________________________________

17. The legislative history accompanying the bill indicates, by way of

example: "If federal health assistance is extended to a part of a state

health department, the entire health department would be covered in all

of its operations." S. Rep. No. 64, 100th Cong., 2d Sess. 16 (1987).

18. See also Barnes v. Gorman, ___ U.S. ___, 122 S. Ct. 2097, 2100

(2002) ("Thus, the remedies for violations ofS 202 of the ADA and S 504

of the Rehabilitation Act are coextensive with the remedies available in

a private cause of action brought under Title VI of the Civil Rights Act

of 1964 . . . .").

21

V.

We now turn to Koslow’s claims under the ADA for

prospective relief against SCI-Graterford Superintendent

Vaughn.19 The District Court found Koslow could not bring

these claims against Vaughn in either his individual or his

official capacity because the ADA does not contemplate

such "individual, or supervisor, liability." Op. at 3. Before

reaching this conclusion, however, the District Court cited

a footnote from Garrett, in which the Supreme Court said:

Our holding here that Congress did not validly

abrogate the States’ sovereign immunity from suit by

private individuals for money damages under Title I

does not mean that persons with disabilities have no

federal recourse against discrimination. Title I of the

ADA still prescribes standards applicable to the States.

Those standards can be enforced by the United States

in actions for money damages, as well as by private

individuals in actions for injunctive relief under Ex

parte Young, 203 U.S. 123 (1908).20

536 U.S. at 374 n.9. The District Court then concluded,

"More significant is the fact that even were I to read the

Second Amended Complaint to plead an ADA claim

explicitly against Superintendent Vaughn, there is no

individual, or supervisor, liability under the ADA." Op. at 3.

We will first consider the statutory issue before turning to

the constitutional argument. We exercise plenary review

over both.

_________________________________________________________________

19. As noted, after Garrett (which barred claims under Title I of the ADA

against states) and the District Court’s dismissal of Koslow’s Title II

claims (which is not appealed), this claim for prospective injunctive relief

against Vaughn is Koslow’s only remaining ADA claim.

20. In Ex parte Young, the Supreme Court found a state official acting in

violation of the Constitution or federal law acts ultra vires and is no

longer entitled to the state’s immunity from suit. The "Young fiction"

allows courts to avoid entering judgments directly against the state while

permitting individual actions against officials violating federal law.

22

A.

Title I of the ADA, incorporating the enforcement scheme

of the Civil Rights Act of 1964, authorizes private injunctive

suits against a "respondent," defined by statute to include

an "employer." 42 U.S.C. SS 2000e(n), 2000e-5(f)-(g). The

District Court’s analysis focused on whether there is

"individual" or "supervisor" liability under the statute. But

both Title I and Title VII define "employer" to include

persons "engaged in an industry affecting commerce who

has 15 or more employees . . . and any agent of such

person." 42 U.S.C. SS 2000e(b), 12111(5)(A). State

governments can constitute "employers" under the statute.21

As the Supreme Court held in Garrett:

[Title I of] [t]he ADA prohibits certain employers,

including the States, from ‘discriminat[ing] against a

qualified individual with a disability because of the

disability in regard to job application procedures, the

hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms

conditions, and privileges of employment.

531 U.S. at 360-61 (citations omitted). And for the same

reasons that we have allowed Title VII claims to proceed

against public officials in their official capacities, an official

sued in his official capacity is an "agent" of the state

_________________________________________________________________

21. 42 U.S.C. S 2000e(b) provides:

The term "employer" means a person engaged in an industry

affecting commerce who has fifteen or more employees for each

working day in each of twenty or more calendar weeks in the

current or preceding calendar year, and any agent of such a person,

but such term does not include (1) the United States, a corporation

wholly owned by the Government of the United States, an Indian

tribe, or any department or agency of the District of Columbia

subject by statute to procedures of the competitive service (as

defined in section 2102 of Title 5), or (2) a bona fide private

membership club (other than a labor organization) which is exempt

from taxation under section 501(c) of Title 26, except that during the

first year after March 24, 1972, persons having fewer than twenty-

five employees (and their agents) shall not be considered employers.

Although the United States is excluded by this definition, state

governments are not.

23

employer under Title I of the ADA. Cf. In re Montgomery

County, 215 F.3d 367, 372-75 (3d Cir. 2000) (allowing

officials in their official capacities to be held liable under

Title VII).

While there appears to be no individual liability for

damages under Title I of the ADA, cf. EEOC v. AIC Sec.

Investigations, Ltd., 55 F.3d 1276, 1280 n.4 (7th Cir. 1995),

prospective relief against state officials acting in their

official capacities may proceed under the statute. The

complaint alleges misconduct by Vaughn only as an official

supervisor at SCI-Graterford. Therefore, under the statute,

insofar as Koslow seeks prospective injunctive relief, he

states a cognizable claim against SCI-Graterford

Superintendent Vaughn, but only in his representative --

not his individual -- capacity.

B.

The parties also dispute whether Koslow’s ADA

prospective claim for injunctive relief against SCI-Graterford

Superintendent Vaughn is barred by the Eleventh

Amendment. Cf. Seminole Tribe, 517 U.S. at 73. Said

another way, the parties disagree whether the Ex parte

Young doctrine applies in the first instance. As noted, the

Eleventh Amendment bars private suits against a state

sued in its own name except in certain narrow

circumstances. Alden, 527 U.S. at 755-56. But the

Supreme Court has said, "Both prospective and

retrospective relief implicate Eleventh Amendment

concerns, but the availability of prospective relief of the sort

awarded in Ex parte Young gives life to the Supremacy

Clause. Remedies designed to end a continuing violation of

federal law are necessary to vindicate the federal interest in

assuring the supremacy of that law." Green v. Mansour, 474

U.S. 64, 68 (1985).

The Commonwealth defendants contend the Eleventh

Amendment only permits suits against officials in their

individual capacities, barring suits against officials in their

representative capacities absent waiver or abrogation. We

disagree. The Eleventh Amendment has not been

interpreted to bar a plaintiff ’s ability to seek prospective

24

relief against state officials for violations of federal law.

Official-capacity suits are an alternative way to plead

actions against entities for which an officer is an agent. See

Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985):

Unless a State has waived its Eleventh Amendment

immunity or Congress has overridden it, however, a

State cannot be sued directly in its own name

regardless of the relief sought. Thus, implementation of

state policy or custom may be reached in federal court

only because official-capacity actions for prospective

relief are not treated as actions against the State.

(citations omitted); see also Verizon Md., Inc. v. Pub. Serv.

Comm’n of Md., ___ U.S. ___, 122 S. Ct. 1753, 1760 (2002)

("In determining whether the doctrine of Ex parte Young

avoids an Eleventh Amendment bar to suit, a court need

only conduct a straightforward inquiry into whether[the]

complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.")

(quotations and citations omitted); Seminole Tribe, 517 U.S.

at 73 (Eleventh Amendment no bar to "federal jurisdiction

over a suit against a state official when that suit seeks only

prospective injunctive relief in order to end a continuing

violation of federal law") (quotation and citation omitted).

Three other courts of appeals have allowed suits for

purely injunctive relief under the ADA against state

officials. See Carten v. Kent St. Univ., 282 F.3d 391, 396

(6th Cir. 2002) ("[A]n official who violates Title II of the ADA

does not represent ‘the state’ for purposes of the Eleventh

Amendment, yet he or she nevertheless may be held

responsible in an official capacity for violating Title II [of the

ADA], which by its terms applies only to ‘public

entit[ies].’ "); Gibson v. Ark. Dept. of Corr., 265 F.3d 718,

720 (8th Cir. 2001) ("The Eleventh Amendment is not a bar

to federal jurisdiction over a suit against a state official

when that suit seeks only prospective injunctive relief in

order to end a continuing violation of federal law.")

(quotations and citations omitted); Roe No. 2 v. Ogden, 253

F.3d 1225, 1233-34 (10th Cir. 2001). In a different context,

we have said, "The principle which emerges from Young and

its progeny is that a state official sued in his official

capacity for prospective injunctive relief is a person within

25

section 1983, and the Eleventh Amendment does not bar

such a suit." Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir.

1998).

For these reasons, federal ADA claims for prospective

injunctive relief against state officials are authorized by the

Ex parte Young doctrine. The Court of Appeals for the

Eighth Circuit’s analysis in Gibson is apposite. In that case,

the court found Seminole Tribe, on which the

Commonwealth defendants rely, dealt with a "markedly

different" statute than the ADA, the Indian Gaming

Regulatory Act (IGRA). 265 F.3d at 720.22 Unlike the IGRA,

the court found there were several enforcement

mechanisms for plaintiffs to sue under Titles I or II of the

ADA. Id. at 721 (noting all remedies of Title VII of the Civil

Rights Act of 1964, including equitable orders and

contempt proceedings, are applicable to ADA Title I

plaintiffs). Second, unlike the IGRA, Congress "chose to use

existing civil rights enforcement mechanisms" when

drafting the ADA. Id. In doing so, Congress was aware that

federal district courts had issued orders "compelling state

officials to perform their statutory obligations." Id. at 722.

Third, the court noted, a single state official can enforce an

ADA provision, while complying with the IGRA requires

cooperative efforts by state negotiators and ratification by

the state legislature. Id. Considering all of these factors, the

court held, "the ADA is a more suitable candidate than

IGRA for Ex parte Young suits designed to change the

behavior of specific government officials." Id.

_________________________________________________________________

22. In Seminole Tribe, an Indian tribe sued the governor of Florida under

the IGRA. The Supreme Court held Ex parte Young did not apply to the

tribe’s suit against the governor because Congress did not intend to

authorize federal jurisdiction under Ex parte Young to enforce the IGRA.

Seminole Tribe, 517 U.S. at 75 n.17, 76. The IGRA allows tribes to sue

states in federal district court if a state does not negotiate regarding

certain gaming rights, but remedial authority is minimal. The Supreme

Court dismissed the tribe’s IGRA claim, holding,"[W]here Congress has

prescribed a detailed remedial scheme for the enforcement against a

State of a statutorily created right, a court should hesitate before casting

aside those limitations and permitting an action against a state officer

based upon Ex parte Young." Id. at 74. The Court said allowing actions

against an official under Ex parte Young would expand remedial powers

beyond what Congress intended. Id. at 75.

26

When the relief sought is prospective injunctive relief, the

request "is ordinarily sufficient to invoke the Young fiction."

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).

Koslow’s claim for reinstatement, with accommodations for

his disability, is the type of injunctive, "forward-looking"

relief cognizable under Ex parte Young. Therefore, he can

state federal claims under the ADA against Superintendent

Vaughn, acting in his official capacity, for prospective

injunctive relief.

VI.

Next, we consider whether the District Court properly

granted summary judgment to PHICO and CompServices on

Koslow’s claims under the ADA and the Rehabilitation Act.

The District Court found these workers’ compensation

providers had no decisionmaking authority over Koslow’s

employment:

They did not fire plaintiff or refuse him an

accommodation. PHICO ceased to be involved in any

way after December 1997, and it is not at all clear that

plaintiff is complaining about anything that occurred

during PHICO’s tenure. The only act attributable to

CompServices is its referral of plaintiff to an

independent medical examination . . . . [I]t is ludicrous

to suppose that by furnishing to the Commonwealth

defendants the information that plaintiff was fit to

return to work, CompServices was discriminating

against him . . . .

Op. at 7. We review the grant of summary judgment de

novo. Doe, 242 F.3d at 446.23

A.

From 1990 to 1997, under agreements with the

Commonwealth of Pennsylvania, PHICO was the third-party

_________________________________________________________________

23. The District Court found CompServices and PHICO, agents of their

employer, could be liable even when the principal was immune from

liability. Therefore, the Court found CompServices and PHICO could be

covered entities under the ADA.

27

administrator for some portions of the Commonwealth’s

self-insured workers’ compensation plans. PHICO

maintains that these services were primarily ministerial,

such as forwarding information received from health care

providers to the Department of Corrections, calculating

sums correctional facilities owed in benefits, and the like.

For these services, PHICO was paid a flat rate.

PHICO’s Vice President of Claims Operations testified the

company’s compensation contracts applied only to PHICO

employees, not to Commonwealth employees. Koslow

contends a jury was entitled to test the credibility of this

statement, rendering summary judgment inappropriate.

Moreover, Koslow suggests genuine issues of material fact

remain whether PHICO’s "nonfeasance" on his claim

contributed to a "breakdown in the interactive process"

between Koslow and SCI-Graterford, which itself might

constitute a violation of the ADA.

We disagree. The District Court correctly concluded

PHICO had no responsibility for ensuring SCI-Graterford’s

compliance with the ADA and the Rehabilitation Act. Only

SCI-Graterford administrators, not PHICO administrators,

could determine whether Koslow, if "disabled," could be

accommodated. No material issues of fact remain

unresolved on PHICO’s "decisionmaking" authority over

Koslow.

Additionally, although the District Court did not address

this issue directly, we do not believe that under these facts,

PHICO is a "covered entity" under the ADA. Only "covered

entities," as defined in 42 U.S.C. S 12112(a), may be liable

under the statute. Here, PHICO could be a proper

defendant only as the "agent" of Koslow’s employer. Id.

S 12112(2). But in Krouse v. American Sterilizer Co., 126

F.3d 494 (3d Cir. 1997), we rejected an agency theory

similar to Koslow’s, holding that in the absence of evidence

that a third-party workers’ compensation administrator had

harassed plaintiff at the direction of plaintiff ’s employer,

the administrator was "not an agent" of the employer and

therefore was "not a covered entity under the ADA." Id. at

505. As in Krouse, Koslow cannot demonstrate PHICO

acted at the direction of the Pennsylvania Department of

Corrections in "wrongly" denying his claim.

28

B.

On December 29, 1997, CompServices began providing

third-party workers’ compensation administration services

for claims against SCI-Graterford accruing prior to July

1997. Koslow contends CompServices, like PHICO, had

contractual and statutory duties -- albeit "implicit" ones --

not to discriminate against SCI-Graterford employees.

Similar to his previous argument, Koslow contends there is

an issue of fact whether CompServices’s obligations to

comply with Title II of the ADA extended to the employees

of SCI-Graterford.

We disagree. CompServices, which assumed

responsibilities for the SCI-Graterford account in December

1997, had, at most, only a minimal connection with

Koslow’s claim. Like PHICO, CompServices had no

decisionmaking authority over Koslow and had no role in

the alleged discrimination. For the reasons noted,

CompServices is not a "covered entity" for ADA purposes.

The District Court correctly disposed of Koslow’s ADA

claims against PHICO and CompServices.

VII.

Finally, we consider the dismissal of Koslow’s state law

claims against PHICO and CompServices. The District

Court concluded these PHRA claims were not cognizable

because the statute does not define "employer" to include

an "agent" thereof:

The PHRA applies to "any employer[,]" but unlike the

ADA does not contain a reference to an "agent" thereof.

Since the PHRA does not define "employer," courts look

to the common law indicia of a master-servant

relationship . . . . The employer’s power to control the

nature and parameters of the employee’s activities is

the key to the relationship. . . . I reject out of hand

plaintiff ’s contention that the Supremacy Clause

requires the term "employer" as it is used in the PHRA

not to be interpreted any more narrowly than it is

defined in the ADA or Title VII.

We exercise plenary review over this question of law.

29

The PHRA defines "person" as "includ[ing] one or more

individuals, partnerships, associations, organizations,

corporations . . . [and] . . . any . . . agent. . . thereof." 43

P.S. S 954(a). Koslow contends the PHRA defines "person" to

include an "agent," so PHICO and CompServices, as

"alleged agents" of the Department of Corrections, can be

liable. We disagree. No Pennsylvania authority supports

Koslow’s interpretation of the PHRA. In Dici v.

Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996), we said,

"The employment discrimination provision of the PHRA

declares only that ‘any employer’ may be liable." We have

never said "any person" can be liable under the statute. See

also Van Horn v. Elbeco Inc., No. 94-2720, 1996 WL

385630, at *4 n.18 (E.D. Pa. July 10, 1996) ("[T]he PHRA

has no . . . reference to agents of [an] employer in its

definition of ‘employer.’ "). Additionally, under the PHRA,

the "person" must "employ four or more persons," arguably

expressing the intent that only employers be held liable.

The District Court properly disposed of Koslow’s state law

claims.

VIII.

For these reasons we will reverse in part and affirm in

part. We will reverse the judgment of the District Court

holding the Commonwealth had not waived sovereign

immunity to Rehabilitation Act claims. We also will reverse

the judgment of the District Court denying Koslow’s ADA

claim for prospective injunctive relief against SCI-Graterford

Superintendent Vaughn, acting in his official capacity. In

all other respects, we will affirm the judgment of the

District Court. We will remand for further proceedings

consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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