Bowers v. National Collegiate Athletic Ass'n

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

8-20-2003

Bowers v. Natl Collegiate

Precedential or Non-Precedential: Precedential

Docket No. 02-3236P

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PRECEDENTIAL

Filed August 20, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-3236, 01-4226, 01-4492, 02-1789

MICHAEL BOWERS

v.

THE NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, as an Association

and a Representative of its Member

Schools a/k/a NCAA; THE NCAA INITIAL-

ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY,

Executive Director of the NCAA, in his individual

and official capacities; CALVIN SYMONS, Managing

Director of the NCAA Student-Eligibility Clearinghouse,

in his individual and official capacities; TEMPLE

UNIVERSITY OF THE COMMONWEALTH SYSTEM OF

HIGHER EDUCATION; ACT INC; UNIVERSITY OF IOWA;

AMERICAN INTERNATIONAL COLLEGE;

THE STATE OF NEW JERSEY,

Intervenor-Defendant in District Court

TEMPLE UNIVERSITY OF THE COMMONWEALTH

SYSTEM OF HIGHER EDUCATION,

Defendant/Third-Party Plaintiff

v.

DELAWARE STATE UNIVERSITY;

THE UNIVERSITY OF MEMPHIS;

UNIVERSITY OF MASSACHUSETTS AMHERST,

Third-Party Defendants

2

University of Massachusetts Amherst

and Delaware State University,

Appellants in 02-3236

*KATHLEEN BOWERS, administratrix ad

prosequendum of the Estate of

Michael Bowers

v.

THE NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, as an Association

and a Representative of its Member

Schools a/k/a NCAA; THE NCAA INITIAL-

ELIGIBILITY CLEARINGHOUSE;

CEDRIC W. DEMPSEY, Executive Director

of the NCAA, in his individual and

official capacities; CALVIN SYMONS,

Managing Director of the NCAA Student-

Eligibility Clearinghouse, in his

individual and official capacities;

TEMPLE UNIVERSITY OF THE COMMONWEALTH

SYSTEM OF HIGHER EDUCATION; ACT, INC.;

UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL

COLLEGE

THE STATE OF NEW JERSEY,

Intervenor-Defendant in District Court

TEMPLE UNIVERSITY OF THE COMMONWEALTH

SYSTEM OF HIGHER EDUCATION,

Defendant/Third-Party Plaintiff

v.

3

DELAWARE STATE UNIVERSITY;

THE UNIVERSITY OF MEMPHIS;

UNIVERSITY OF MASSACHUSETTS AMHERST,

Third-Party Defendants

The University of Memphis,

Appellant in No. 01-4226

*(Amended Per Clerk’s Order of 11/6/02)

*KATHLEEN BOWERS, administratrix ad

prosequendum of the Estate of

Michael Bowers

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, as an

Association and a Representative of its Member Schools

a/k/a NCAA; THE NCAA INITIAL-ELIGIBILITY

CLEARINGHOUSE; CEDRIC W. DEMPSEY, Executive

Director of the NCAA, in his individual and official

capacities; CALVIN SYMONS, Managing Director of the

NCAA Student-Eligibility Clearinghouse, in his individual

and official capacities; TEMPLE UNIVERSITY OF THE

COMMONWEALTH SYSTEM OF HIGHER EDUCATION;

ACT, INC.; UNIVERSITY OF IOWA; AMERICAN

INTERNATIONAL COLLEGE;

THE STATE OF NEW JERSEY,

Intervenor-Defendant in District Court

TEMPLE UNIVERSITY OF THE COMMONWEALTH

SYSTEM OF HIGHER EDUCATION,

Defendant/Third-Party Plaintiff

v.

4

DELAWARE STATE UNIVERSITY;

THE UNIVERSITY OF MEMPHIS;

UNIVERSITY OF MASSACHUSETTS AMHERST,

Third-Party Defendants

University of Iowa,

Appellant in No. 01-4492

*(Amended Per Clerk’s Order of 11/6/02)

*KATHLEEN BOWERS, administratrix ad

prosequendum of the Estate of

Michael Bowers

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, as an

Association and a Representative of its Member Schools

a/k/a NCAA; THE NCAA INITIAL-ELIGIBILITY

CLEARINGHOUSE; CEDRIC W. DEMPSEY, Executive

Director of the NCAA, in his individual and official

capacities; CALVIN SYMONS, Managing Director of the

NCAA Student-Eligibility Clearinghouse, in his individual

and official capacities; TEMPLE UNIVERSITY OF THE

COMMONWEALTH SYSTEM OF HIGHER EDUCATION;

ACT, INC.; UNIVERSITY OF IOWA; AMERICAN

INTERNATIONAL COLLEGE;

THE STATE OF NEW JERSEY,

Intervenor-Defendant in District Court

TEMPLE UNIVERSITY OF THE COMMONWEALTH

SYSTEM OF HIGHER EDUCATION,

Defendant/Third-Party Plaintiff

v.

5

DELAWARE STATE UNIVERSITY;

THE UNIVERSITY OF MEMPHIS;

UNIVERSITY OF MASSACHUSETTS AMHERST,

Third-Party Defendants

The University of Massachusetts,

Appellant in No. 02-1789

*(Amended Per Clerk’s Order of 11/6/02)

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 97-cv-02600)

Honorable Stephen M. Orlofsky, District Judge

Argued July 8, 2003

BEFORE: NYGAARD, SMITH, and GREENBERG,

Circuit Judges

(Filed: August 20, 2003)

Richard L. Bazelon (argued)

Bazelon, Less & Feldman

1515 Market Street

7th Floor

Philadelphia, PA 19102

Barbara E. Ransom

Public Interest Law Center

of Philadelphia

125 South 9th Street

Suite 700

Philadelphia, PA 19107

Attorneys for Appellees Michael

Bowers and Kathleen Bowers,

administratrix ad prosequendum of

the Estate of Michael Bowers

6

Shannon D. Farmer (argued)

Abigail L. Flitter, Esq.

John B. Langel, Esq.

Ballard, Spahr, Andrews & Ingersoll

1735 Market Street

51st Floor

Philadelphia, PA 19103

Attorneys for Appellee Temple

University

Jack J. Wind

Margulies, Wind, Herrington,

& Knopf

15 Exchange Place, Suite 510

Jersey City, NJ 07302

Thomas S. Miller

Attorney General

Gordon E. Allen (argued)

Deputy Attorney General

1305 East Walnut Street

Hoover State Office Building,

2nd Floor

Des Moines, IA 50319

Attorneys for Appellant University

of Iowa

Andrea M. Silkowitz

Office of Attorney General of

New Jersey

Division of Law

124 Halsey Street

P.O. Box 45029

Newark, NJ 07102

Attorney for State of New Jersey

7

Ralph F. Boyd, Jr.

Assistant Attorney General

Seth M. Galanter

Sarah E. Harrington (argued)

United States Department of Justice

Civil Rights Division

Appellate Section

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Attorneys for Intervenor United

States of America

Michael K. Willison

Dickie, McCamey & Chilcote

One Greentree Centre

Suite 201

Marlton, NJ 08053-3105

Attorneys for Appellant Delaware

State University

Peter L. Frattarelli

Archer & Greiner

One Centennial Square

P.O. Box 3000

Haddonfield, NJ 08033

Kae Carpenter Todd

Mary M. Collier (argued)

Assistant Attorney General

Civil Litigation and State

Services Division

Office of the Attorney General

of Tennessee

P.O. Box 20207

Nashville, TN 37202

Attorneys for Appellant University

of Memphis

8

Linda B. Celauro (argued)

John J. Peirano

Gary S. Prish

Carpenter, Bennett & Morrissey

100 Mulberry Street

Three Gateway Center

Newark, NJ 07102

Attorneys for Appellant University

of Massachusetts

Thomas C. Hart

Ruprecht, Hart & Weeks

306 Main Street

Millburn, NJ 07041

Attorneys for American

International College

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

This matter comes on before this court on appeals by the

University of Iowa (“Iowa”), Delaware State University

(“Delaware State”), the University of Massachusetts

(“UMass”), and the University of Memphis (“Memphis”) in

an action Michael Bowers brought under Title II of the

Americans with Disabilities Act (“ADA”) and section 504 of

the Rehabilitation Act as well as under the New Jersey Law

Against Discrimination (“NJLAD”). Among the appellants,

however, Bowers sued only Iowa although he also sued

Temple University (“Temple”), which is an appellee and is

participating in this appeal, and certain other parties that

have been dismissed from the action or are not

participating in the appeal. During the course of the

proceedings, Michael Bowers has died leading to his mother

Kathleen Bowers being substituted for him. Nevertheless,

as the parties have done in their briefs, as a matter of

convenience we will treat him as the sole appellant in this

opinion referring to him as “Bowers”.

9

In determining this matter, we accept as true the facts

Bowers alleged in his complaint, as amended, and the facts

Temple alleged in its third-party complaint against

Memphis, UMass, and Delaware State. Inasmuch as the

history of this case is long and complicated, we set forth

only the portions necessary for resolution of the appeal.

The case may be said to have its origin in the

circumstances that Bowers played football in high school in

New Jersey and was interested in obtaining an athletic

scholarship at a National Collegiate Athletic Association

(“NCAA”) Division I or II school. The NCAA is an

unincorporated voluntary association of more than 1000

members, a majority of which are public and private four-

year colleges. See Cureton v. NCAA, 198 F.3d 107, 110 (3d

Cir. 1999). In fact, the universities involved on this appeal

are NCAA members.

Bowers suffered from a diagnosed learning disability that

prevented him from taking several of the secondary school

courses the NCAA considers to be core requirements for

athletic eligibility and for the award of an athletic

scholarship. The complaint and third-party complaint allege

that the five universities we have mentioned, i.e., Temple,

Iowa, Delaware State, UMass, and Memphis, recruited

Bowers for their football programs but that the NCAA

Clearinghouse, which determines whether student-athlete

prospects meet required education guidelines, determined

that he did not meet the requirement that a student take

13 core courses in his secondary school. In 1996, after the

universities learned of Bowers’s status, they ceased

recruiting him.1

On May 23, 1997, Bowers filed a complaint alleging that

the NCAA, the NCAA Initial Eligibility Clearinghouse, and a

number of individual defendants violated, inter alia, the

ADA and the Rehabilitation Act in their treatment of him.

After the district court denied Bowers’s motion for

preliminary injunctive relief, Bowers v. NCAA, 974 F. Supp.

459, 467 (D.N.J. 1997), he amended his complaint to join

Temple, Iowa, and American International College as

1. Temple accepted Bowers as a regular admission student, but

restricted his access to its athletic facilities.

10

defendants and to add state law claims under the NJLAD.

The district court subsequently granted summary judgment

in favor of the Clearinghouse and granted in part and

denied in part the motions for summary judgment filed by

the NCAA, Temple, Iowa, and American International

College.2 Bowers v. NCAA, 9 F. Supp. 2d 460 (D.N.J. 1998).

Following the district court’s disposition of subsequent

motions for summary judgment in Bowers v. NCAA, 118 F.

Supp. 2d 494 (D.N.J. 2000), Temple filed a third-party

complaint on November 21, 2000, seeking contribution for

any monetary liability it might have to Bowers from

Delaware State, UMass, and Memphis. These three

universities had not been parties to this litigation and

Bowers has not sued any of them.

Subsequently, Bowers moved to add claims against Iowa

and on July 3, 2001, the district court granted that motion.

Bowers v. NCAA, Civ. No. 97-2600, 2001 WL 1772801, at

*10 (D.N.J. July 3, 2001). In its opinion, in response to

Iowa’s contention that the amendment would be futile as it

was immune from suit, the court held that Iowa was not an

arm of the State of Iowa for Eleventh Amendment purposes

and thus it was not immune. Id. at * 9. Iowa did not appeal

from that order at that time.

All three third-party defendants moved to dismiss the

third-party complaint, arguing that neither Title II nor

section 504 contemplates an award for contribution and

further arguing, in the cases of Memphis and Delaware

State, that the Eleventh Amendment applied to them and

barred Temple’s action against them as the provisions for

abrogation and waiver of immunity in the two statutes were

unconstitutional. The district court, on November 7, 2001,

granted in part and denied in part Memphis’s motion,

holding that Memphis was an arm of the State of Tennessee

for Eleventh Amendment purposes, Temple’s contribution

claim under the NJLAD against Memphis was barred by the

doctrine of sovereign immunity, there is a right of

contribution under Title II of the ADA and section 504 of

2. A consent agreement and order dismissing the action without

prejudice as to American International College was filed on December 3,

2001.

11

the Rehabilitation Act, Congress validly abrogated

Memphis’s Eleventh Amendment immunity under Title II of

the ADA, and Memphis waived its Eleventh Amendment

immunity under the Rehabilitation Act by accepting federal

funds. Bowers v. NCAA, 171 F. Supp. 2d 389, 397-409

(D.N.J. 2001).

The district court denied with prejudice Delaware State’s

motion to dismiss Temple’s claims for contribution under

Title II and section 504 as, unlike Memphis with respect to

the State of Tennessee, it did not come forward with

evidence demonstrating its relationship to the State of

Delaware. Id. at 399. The court, however, did not make

other dispositive rulings on the Eleventh Amendment

issues, though it did invite UMass and Delaware State to

submit additional briefing on these issues and granted

Temple an opportunity to reply to this briefing.3 Id. at 409.

Memphis filed a notice of appeal from the November 7,

2001 order on November 21, 2001, and Iowa filed a notice

of appeal from the July 3, 2001 order on December 21,

2001.

On November 21, 2001, UMass filed a motion pursuant

to 28 U.S.C. § 1292(b) for a prescribed statement with

respect to the district court’s ruling that there is a right of

contribution under Title II and section 504 of the

Rehabilitation Act. Delaware State joined in that motion but

Memphis did not. On December 7, 2001, UMass filed

supplemental papers in support of its motion to dismiss,

addressing the Eleventh Amendment issues, but Delaware

State did not file any similar additional papers. On March

6, 2002, the district court granted the motions of UMass

and Delaware State for a certified order pursuant to 28

3. The court allowed the additional briefing so that UMass and Delaware

State could demonstrate their relationships to their respective states to

determine whether they were entitled to sovereign immunity on Temple’s

claim for contribution on the NJLAD claim. Bowers, 171 F. Supp. 2d at

409. We are not clear as to why in view of its denial of Delaware State’s

motion for dismissal predicated on sovereign immunity on the Title II

and section 504 claims by reason of its failure to demonstrate that it was

entitled to the benefit of the Eleventh Amendment as an arm of the State

of Delaware, the court allowed it to file the supplemental brief on the

NJLAD claim.

12

U.S.C. § 1292(b) with respect to the contribution issues. It

also found that UMass was an arm of the State of

Massachusetts for Eleventh Amendment purposes, but

consistently with its order with respect to Memphis, denied

UMass’s motion to dismiss Temple’s claims against it under

section 504 and Title II and dismissed Temple’s claims

against it under the NJLAD. It also dismissed Temple’s

claim for contribution under the NJLAD against Delaware

State as it declined to exercise supplemental jurisdiction

under 28 U.S.C. § 1367 over that claim. Bowers v. NCAA,

188 F. Supp. 2d 473, 481-82 (D.N.J. 2002). These

dispositions left Temple’s claim for contribution under Title

II and section 504 alive against all three third-party

defendants but eliminated the NJLAD contribution claim

from the third-party complaint. The court, however, stayed

all proceedings related to the third-party complaint pending

resolution of Memphis’s appeal. Id. at 483.4

Iowa now appeals at No. 01-4492 from the district court’s

order reflecting its finding that it is not an arm of the State

of Iowa for Eleventh Amendment purposes and Iowa,

Memphis at No. 01-4226, and UMass at No. 02-1789,

appeal from the district court’s orders reflecting its

Eleventh Amendment determinations with respect to the

abrogation of and waiver of sovereign immunity. Delaware

State did appeal from the district court’s order denying its

motion to dismiss on Eleventh Amendment grounds but it

has dismissed that appeal voluntarily. With our permission

UMass and Delaware State appeal at No. 02-3236 from the

district court’s orders of November 7, 2001, and March 6,

2002, reflecting its conclusion that there is a right to

contribution under Title II of the ADA and section 504 of

the Rehabilitation Act. On March 19, 2002, the United

States filed a notice of intervention pursuant to 28 U.S.C.

§ 2403(a), advising that it was intervening to argue that

Congress validly abrogated the states’ Eleventh Amendment

immunity under Title II and that states accepting federal

funds waived that immunity under the Rehabilitation Act.

Thus, the appeals raise significant issues with respect to

4. This opinion was the ninth the district court had issued in this case.

See Bowers, 188 F. Supp. 2d at 477. We do not doubt that there will be

more.

13

Iowa’s status under the Eleventh Amendment, the

abrogation and waiver of the states’ Eleventh Amendment

immunity by and pursuant to the ADA and the

Rehabilitation Act, and whether there can be a right of

contribution under those acts. Preliminarily, however, we

address procedural and jurisdictional matters with respect

to Iowa and Memphis.

II. JURISDICTION AND STANDARD OF REVIEW

Subject to the timeliness issue with respect to Iowa’s

appeal, we have jurisdiction over the orders denying the

appellants Eleventh Amendment immunity under 28 U.S.C.

§ 1291 as those orders are final for purposes of appeal

under the collateral order doctrine. See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144, 113 S.Ct. 684, 687 (1993). We have jurisdiction

with respect to the contribution issues under 28 U.S.C.

§ 1292(b). Inasmuch as we are deciding this appeal by

resolving questions of law, we are exercising de novo review.

See Lavia v. Pa. Dep’t of Corrs., 224 F.3d 190, 194-95 (3d

Cir. 2000).

III. DISCUSSION

A. TIMELINESS OF IOWA’S APPEAL

We first discuss the timeliness of Iowa’s appeal. On

December 21, 2001, Iowa filed a notice of appeal stating

that it appealed “from the following portions of the Orders

and Memoranda of the District Court entered on July 3,

2001 . . . .” Iowa App. at 30. Bowers has moved to dismiss

the appeal as being untimely.5 Clearly, Iowa filed this notice

5. The court docketed Iowa’s appeal at No. 01-4492. Nevertheless, when

Iowa filed its brief it bore the number 01-4226, which was the number

the court assigned to Memphis’s appeal. Moreover, the cover of the brief

recited that the appeal was from the order of November 7, 2001. Of

course, that was not correct as Iowa’s notice of appeal recited that the

appeal was from the order of July 3, 2001, and Iowa was not a party to

the November 7, 2001 order. Iowa’s procedure with respect to this brief

caused Bowers on April 23, 2002, to file a second motion to dismiss the

appeal at No. 01-4492. Though we are dismissing Iowa’s appeal we are

denying Bowers’s April 23, 2002 motion because it is not necessary and,

in any event, we would not dismiss an appeal merely because the brief

on the appeal carried the wrong docket number and its cover incorrectly

recited the date of the order being appealed.

14

after the 30-day deadline prescribed by Fed. R. App. P.

4(a)(1). Iowa appears to recognize that, under Torres v.

Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405

(1988), this time limit is mandatory and jurisdictional, and

thus ordinarily its appeal would be untimely. See Iowa Br.

at 9. It nevertheless argues that we may and should

entertain its appeal because the interests of justice and

judicial economy dictate that we consider its appeal

together with the timely appeal of Memphis which also

raises Eleventh Amendment issues.

Memphis filed its notice of appeal on November 21, 2001,

appealing from the district court’s November 7, 2001 order

but Iowa was not a party to that order. Iowa, however, did

file its appeal 30 days after Memphis filed its appeal. Fed.

R. App. P. 4(a)(3) provides: “If one party timely files a notice

of appeal, any other party may file a notice of appeal within

14 days after the date when the first notice was filed . . . .”

Iowa argues that even though it did not file its appeal

within the Rule 4(a)(3) 14-day time limit that rule is a

nonmandatory rule of practice so that its late filing date

does not require us to dismiss its appeal. Iowa Br. at 10.

Although not expressly using the term in its brief, it in

effect argues that we may consider its appeal under our

“pendent” appellate jurisdiction as it contends that

Memphis’s notice of appeal “establishes the jurisdiction of

the Circuit over the entire case . . . .” Id. Thus, it seeks to

tie its appeal to that of Memphis for jurisdictional purposes.

Bowers, on the other hand, argues that Rule 4(a)(3)’s time

limit is mandatory and that our pendent jurisdiction cannot

reach so far as to encompass Iowa’s appeal.6 Bowers Br. at

24.

6. We are assuming without deciding that if Iowa had appealed from the

July 3, 2001 order within the 14-day period measured from November 7,

2001, its appeal would have been timely. We also are assuming without

deciding that the July 3, 2001 order was final and appealable under the

collateral order doctrine even though it arose in the context of the

granting of a motion to amend rather than the denial of a motion to

dismiss or for summary judgment, the usual context in which collateral

order appeals are taken. We may make these assumptions as we are, in

any event, dismissing the appeal.

15

In Torres, the Supreme Court held that omission of one

litigant’s name in a notice of appeal filed by 15 other

appellants required a conclusion that that party had not

appealed. The Court stated that “the mandatory nature of

the time limits contained in Rule 4 would be vitiated if

courts of appeals were permitted to exercise jurisdiction

over parties not named in the notice of appeal.” Torres, 487

U.S. at 315, 108 S.Ct. at 2407-08. The Court quoted the

Advisory Committee Note following Rule 3, which states:

“Rule 3 and Rule 4 combine to require that a notice of

appeal be filed with the clerk of the district court within the

time prescribed for taking an appeal. Because the timely

filing of a notice of appeal is ‘mandatory and jurisdictional,’

[citation omitted] compliance with the provisions of those

rules is of the utmost importance.” Id., 108 S.Ct. at 2408.

The Court also stated that, although a court may construe

the rules liberally in determining the sufficiency of a party’s

compliance with them, “it may not waive the jurisdictional

requirements of Rules 3 and 4, even for ‘good cause shown’

under Rule 2, if it finds that they have not been met.” Id.

at 317, 108 S.Ct. at 2409.

Nonetheless, in United States v. Tabor Court Realty Corp.,

943 F.2d 335, 344 (3d Cir. 1991), we held that,

notwithstanding the broad language of Torres, Rule 4(a)(3)

is best considered a rule of practice so that compliance with

it is not a jurisdictional prerequisite. We further held that

“in some cases, the rights of the parties are so closely tied

together that an appellate court can render no judgment

that would be just without affecting the rights of the parties

who did not file notices of appeal.” Id. Yet, subsequently, in

EF Operating Corp. v. American Buildings, 993 F.2d 1046,

1049 n.1 (3d Cir. 1993), we noted that the broad language

of Torres overruled several of our precedents that had held

that rules like Rule 4(a)(3) were rules of practice. Without

citing Tabor Court, we stated that “there is no reason to

believe that the specific time requirement of Rule 4(a)(3) is

not jurisdictional.” Id.

Bowers urges us to consider Tabor Court to be a pendent

appellate jurisdiction case, the holding of which does not

withstand the Supreme Court’s recent narrow view of that

doctrine in Swint v. Chambers County Commission, 514

16

U.S. 35, 115 S.Ct. 1203 (1995). We recently have observed

that our discretionary, though narrow, exercise of pendent

appellate jurisdiction after Swint has been limited to two

circumstances: “inextricably intertwined orders or review of

the non-appealable order where it is necessary to ensure

meaningful review of the appealable order.” E.I. DuPont de

Nemours & Co. v. Rhone Poulenc Fiber & Resin

Intermediates, S.A.S., 269 F.3d 187, 203 (3d Cir. 2001).

Here, however, we have no need to reconcile our

precedents. Indisputably, considering the July 3, 2001

order by itself Iowa failed to file a timely appeal. Of course,

it was that order that determined that Iowa was not an arm

of the State of Iowa for Eleventh Amendment purposes and

thus was not entitled to sovereign immunity under the

amendment. In the November 7, 2001 order, by contrast,

the district court did not make any determinations with

respect to Iowa. Moreover, in contrast to its conclusion with

respect to the relationship of Iowa to its state, it held that

Memphis was an arm of the State of Tennessee for

Eleventh Amendment purposes, but that Congress validly

had abrogated the states’ immunity under that amendment

in Title II and the State of Tennessee had waived that

immunity pursuant to section 504 of the Rehabilitation Act

by reason of Memphis having accepted federal funds. Thus,

Iowa’s argument fails under even the most liberal of the

standards enunciated in Tabor Court for, as we set forth

above, the principles of that case apply only where “the

rights of the parties are so closely tied together that an

appellate court can render no judgment that would be just

without affecting the rights of the parties who did not file

notices of appeal.”

Moreover, DuPont suggests that the exercise of pendent

appellate jurisdiction requires, at the very least, that the

orders from which the appeals are taken be “inextricably

intertwined.”7 The July 3 and November 7 orders are not

7. The Supreme Court’s decision in Swint suggests that a court should

exercise pendent appellate jurisdiction with particular restraint where an

appellant invokes pendent-party rather than pendent-issue jurisdiction.

See Charles A. Wright et al., 16 Federal Practice and Procedure 2d

§ 3937, at 696-97 (2d ed. 1996 & Supp. 2003).

17

“tied together” or “inextricably intertwined.” Our resolution

of the Eleventh Amendment questions posed by Memphis’s

appeal would not be material to the decision that Iowa is

not an arm of the State of Iowa for Eleventh Amendment

purposes and a ruling with respect to Iowa’s status under

the Eleventh Amendment would be independent of our

determinations with respect to Memphis. Accordingly, we

will dismiss Iowa’s appeal at No. 01-4492 because it was

not timely filed, and do not consider whether Iowa is an

arm of the State of Iowa for Eleventh Amendment purposes.8

B. THE STATUS OF MEMPHIS ON THIS APPEAL

Temple urges that we should dismiss Memphis’s appeal

for the following reasons. On November 6, 2002, Temple

filed in the district court a notice of dismissal without

prejudice of its third-party complaint against Memphis

pursuant to Fed. R. Civ. P. 41(a) which provides in

pertinent part, with inapplicable exceptions, that “an action

may be dismissed by the plaintiff without order of court . . .

by filing a notice of dismissal at any time before service by

the adverse party of an answer or of a motion for summary

judgment, whichever first occurs . . . .” Memphis

acknowledged at oral argument before us that the rule is

applicable to third-party complaints (a point with which we

agree) and that prior to November 6, 2002, notwithstanding

its extensive participation in this case, it had not filed an

answer or a motion for summary judgment.9 Thus, the

8. We realize that depending on the future course of this litigation we

may have to entertain Iowa’s Eleventh Amendment arguments following

final judgment. Accordingly, there is much to be said in favor of

considering them now and possibly saving the parties and the district

court from engaging in what may prove, at least in part, to be

unnecessary proceedings. Indeed, Iowa makes this very point. Iowa Br.

at 14. Nevertheless, a court of appeals cannot create jurisdiction on a

theory that it would be convenient to do so. In determining to dismiss

Iowa’s appeal we have not overlooked the circumstances that we are

dismissing Memphis’s appeal. Rather, we find it unnecessary to consider

whether the dismissal of Memphis’s appeal would have eliminated

jurisdiction over Iowa’s appeal as we have not had such jurisdiction in

the first place.

9. The parties have not explained in their procedural histories how

Memphis has avoided filing an answer but we are not concerned with

this point as our examination of the docket sheet confirms that it has

not done so.

18

dismissal would appear to have removed Memphis from the

litigation.

Memphis, nevertheless, urges that the notice of dismissal

was ineffective and that, in any event, we should not simply

dismiss its appeal without granting it certain relief. With

respect to the first contention, it reasons that inasmuch as

it filed its appeal before Temple filed its notice of dismissal,

the district court did not have jurisdiction to dismiss the

case “over those aspects of [the] case included in the

appeal.” Letter from Peter L. Frattarelli, attorney for

Memphis, to court (Nov. 18, 2002). In this regard, Memphis

cites Griggs v. Provident Consumer Discount Co., 459 U.S.

56, 58, 103 S.Ct. 400, 402 (1982). Therefore, Memphis

considers that it still is a party in the district court.

Nevertheless, Memphis does not object to dismissal of its

appeal and of Temple’s third-party complaint against it

“provided that the dismissal of all claims against [it] is with

prejudice and that the Court assesses [its] costs to Temple.”

Letter of November 18, 2002.

In considering whether to dismiss its appeal, we reject

Memphis’s request that we modify Temple’s notice of

dismissal in the district court to provide that it is with

prejudice. After all, Rule 41(a) provides that “[u]nless

otherwise stated in the notice of dismissal . . . the dismissal

is without prejudice . . . .” Thus, Temple in specifying that

the dismissal was without prejudice merely followed the

rule. Consequently, even in the absence of the “without

prejudice” provision, the effect of the notice of dismissal

would have been the same. Furthermore, we see no reason

why Temple should not be able partially to dismiss its

third-party complaint as authorized by Rule 41(a).

We, however, are not unmindful of Memphis’s claim that

it should be awarded its costs. At oral argument before us

it pointed out that it had expended substantial funds in

defense of this action. Nevertheless, we are satisfied that

Temple should not be required to pursue a claim that it

seeks to abandon, i.e., the third-party complaint against

Memphis, merely because the party against whom it has

asserted the claim has expended effort and resources in

defense against it. Thus, we will dismiss Memphis’s appeal

at No. 01-4226 but will do so without prejudice to it

19

seeking an order from the district court to compensate it for

its costs and fees in both the district court and in this

court. Of course, we express no opinion on whether it is

entitled to recover these expenses as the district court will

resolve that issue on the remand of the case we are

ordering.

In reaching our result, we are cognizant of Memphis’s

argument that the notice of dismissal was ineffective as the

district court lost jurisdiction over the case when Memphis

appealed. To the contrary, we will accommodate that

argument by remanding the matter to the district court

where Temple again should file the notice of dismissal. Cf.

Venen v. Sweet, 758 F.2d 117, 123 (3d Cir. 1985) (court of

appeals may remand case to the district court for that court

to have jurisdiction to grant a motion under Fed. R. Civ. P.

60(b)). In the circumstances, we have no need to determine

whether the original notice of dismissal was effective.

We make one further point with respect to Memphis’s

status. We are dismissing its appeal on the basis of our

understanding that Temple continues to wish to dismiss

Memphis from the case and thus, on the remand we are

ordering, will refile its notice of dismissal. If it does not do

so promptly Memphis may move in this court to reinstate

its appeal.10

C. THE JURISDICTIONAL NATURE OF THE ELEVENTH

AMENDMENT

The district court permitted the third-party complaint to

go forward notwithstanding its holdings that two of the

third-party defendants, Memphis and UMass, were arms of

their respective states and thus could invoke the Eleventh

Amendment. It reached this result because it held that they

waived immunity under the Rehabilitation Act by their

acceptance of federal funds and because Congress had

10. We realize that under our opinion even if Temple does not file the

notice of dismissal Memphis could move to dismiss the third-party

complaint against it. Inasmuch as we are taxing costs in favor of UMass

and Delaware State against Temple the district court might think it

appropriate to follow the same course with respect to Memphis.

20

abrogated their immunity by enacting Title II of the ADA.

These holdings permitted the district court to exercise

jurisdiction notwithstanding the Eleventh Amendment

which recites that “[t]he 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.” Moreover, as we have indicated, the

district court held that there is a right of contribution

under the Rehabilitation Act and the ADA. If the court had

reached a contrary result either in its abrogation and

waiver of immunity holdings or its contribution holding it

would have dismissed UMass from this case, and if it

reached a contrary result on the contribution issue it would

have dismissed Delaware State from the case.11 Accordingly,

there are two independent bases on which it is possible

that Temple’s contribution claims must fail as a matter of

law against the remaining third-party defendants, UMass

and Delaware State, either that the Eleventh Amendment

precludes the claims against UMass or that neither the

Rehabilitation Act nor the ADA permits claims for

contribution.12

It might be thought that we should consider the statutory

construction argument first for in Hindes v. FDIC, 137 F.3d

11. The court did not reach a definitive conclusion of the question of

whether the Eleventh Amendment was applicable to Delaware State as it

reserved judgment on that question with respect to the claim for

contribution against it on the NJLAD count. Yet, it did deny Delaware

State’s Eleventh Amendment motion to dismiss on sovereign immunity

grounds Temple’s claim for contribution on the Title II and section 504

claims as Delaware State did not establish that the amendment was

applicable to it. While a contrary result on the immunity question with

respect to Delaware State on the Title II and section 504 claims

(including the court’s abrogation and waiver holdings) also would have

led to its dismissal from the case, it does not challenge those

determinations on this appeal.

12. There is a third basis on which the contribution claims could fail,

i.e., that the third-party complaint did not state a claim on which relief

could be granted as a matter of law even if claims for contribution were

permissible under the Rehabilitation Act and the ADA. See n.16 infra.

But neither UMass nor Delaware State advances this theory on this

appeal.

21

148, 166 (3d Cir. 1998), we observed that Eleventh

Amendment immunity questions are “constitutional in

scope” and that “[c]ourts, of course, will avoid such

questions where possible.” On the other hand, questions as

to the scope of the Rehabilitation Act and ADA with respect

to the availability of contribution are not constitutional in

scope. In Hindes, applying the approach of avoiding

constitutional questions, we declined to determine whether

suit was proper under the Ex Parte Young, 209 U.S. 123,

28 S.Ct. 441 (1908), exception to Eleventh Amendment

immunity inasmuch as the anti-injunction provision of the

Financial Institutions Reform, Recovery, and Enforcement

Act of 1989 (“FIRREA”) barred the suit. We explained our

ruling in Hindes by stating: “[W]e need not decide difficult

jurisdictional issues where we can decide the case on

another dispositive issue in favor of the party who would

benefit by a ruling that we do not have jurisdiction.” Id.

(citing Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623

(3d Cir. 1996)).

Yet, within one month after we decided Hindes, the

Supreme Court decided Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 118 S.Ct. 1003 (1998). In Steel

Co. the Court rejected the notion of “hypothetical

jurisdiction” adopted by some courts of appeals, whereby a

court would “assume” jurisdiction for purposes of deciding

the merits of a case, at least where the court could resolve

the merits question more easily and the prevailing party on

the merits would be the same as the prevailing party if

jurisdiction were denied. Id. at 93-94, 118 S.Ct. at 1012.

Inasmuch as in entertaining Hindes we exercised

hypothetical jurisdiction it would be plausible for us now to

hold that notwithstanding Hindes, in the light of Steel Co.,

we initially must address the Eleventh Amendment issues

raised on this appeal.

Yet, Steel Co. may be somewhat limited as it specifically

indicated that “Article III jurisdiction is always an

antecedent question.” Id. at 101, 118 S.Ct. at 1016

(emphasis added). In fact, the Court recognized that in its

prior cases it had decided, for example, whether a statutory

cause of action existed before determining statutory

standing questions such as whether the plaintiff comes

22

within the zone of interests protected by the statute. Id. at

96-97, 118 S.Ct. at 1013 (citing Nat’l RR Passenger Corp. v.

Nat’l Ass’n of RR Passengers, 414 U.S. 453, 365 n.13, 94

S.Ct. 690, 696 n.13 (1974)). Steel Co., therefore, should not

be understood as requiring courts to answer all questions

of “jurisdiction,” broadly understood,13 before addressing

the existence of the cause of action sued upon. Instead,

that case requires courts to answer questions concerning

Article III jurisdiction before reaching other questions.14

We, therefore, must consider whether the Eleventh

Amendment immunity issues presented by this case are

questions of Article III jurisdiction or are at least sufficiently

similar to such questions to require application of Steel Co.

As the Steel Co. Court stated, the “triad of injury in fact,

causation, and redressability constitutes the core of Article

III’s case-or-controversy requirement.” Id. at 103-04, 118

S.Ct. at 1017 (footnote omitted). The Eleventh Amendment

has little bearing on these Article III concerns. See Calderon

v. Ashmus, 523 U.S. 740, 745 n.2, 118 S.Ct. 1694, 1697

n.2 (1998) (“While the Eleventh Amendment is jurisdictional

in the sense that it is a limitation on the federal court’s

judicial power, and, therefore, can be raised at any stage of

13. “ ‘Jurisdiction,’ it has been observed, ‘is a word of many, too many,

meanings.’ ” Steel Co., 523 U.S. at 90, 118 S.Ct. at 1010 (quoting United

States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).

14. In fact, even this rule is not hard and fast after Steel Co. Three

justices in that case would have decided the easier statutory question

without reaching the jurisdictional question. Id. at 112, 131-34, 118

S.Ct. at 1030-32, (Stevens, J., concurring, joined by Souter, J., and

Ginsburg, J.). Three more justices agreed with the majority that the

jurisdictional question properly was addressed first in that case, but left

open the possibility that in other cases, courts may reserve difficult

questions of jurisdiction when the case alternatively could be resolved on

the merits in favor of the party who would have prevailed in the absence

of jurisdiction. Id. at 110-11, 118 S.Ct. at 1020 (O’Connor, J.,

concurring, joined by Kennedy, J.); id. at 111-12, 118 S.Ct. at 1020-21

(Breyer, J., concurring). Thus, six justices maintained the position that

in some circumstances a court may reserve certain questions of

jurisdiction, even if those questions involve Article III jurisdiction, in

favor of deciding the case on statutory grounds. We, however, need not

go that far, inasmuch as we are asked to resolve a question not of Article

III jurisdiction but of Eleventh Amendment immunity.

23

the proceedings, we have recognized that it is not

coextensive with the limitations on judicial power in Article

III.”); but see Wisconsin Dep’t of Corrs. v. Schacht, 524 U.S.

381, 389, 391, 118 S.Ct. 2047, 2052, 2054 (1998) (noting

that the “Eleventh Amendment . . . does not automatically

destroy original jurisdiction” and that the Court never has

resolved whether, or to what extent, “Eleventh Amendment

immunity is a matter of subject matter jurisdiction.”). It

cannot, in any event, seriously be disputed that this case

meets the minimum requirements for Article III jurisdiction.

While we have not had occasion to consider whether Steel

Co. requires the resolution of Eleventh Amendment issues

before a court reaches different issues, other courts of

appeals have done so. As it happens, they have split fairly

evenly on this issue, with three courts reading Steel Co.

broadly and holding that courts must address the Eleventh

Amendment issue first as it raises an Article III type

restriction, Martin v. Kansas, 190 F.3d 1120, 1126 (10th

Cir. 1999); United States v. Texas Tech Univ., 171 F.3d 279,

287 (5th Cir. 1999); Seaborn v. Florida Dep’t of Corrs., 143

F.3d 1405, 1407 (11th Cir. 1998), while at least three

courts have held to the contrary, United States ex rel. Long

v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892 (D.C. Cir.

1999); Parella v. Ret. Bd. of the R.I. Employees’ Ret. Sys.,

173 F.3d 46 (1st Cir. 1999); Kennedy v. Nat’l Juvenile Det.

Ass’n, 187 F.3d 690, 696 (7th Cir. 1999) (not citing Steel

Co.); see also Kovacevich v. Kent State Univ., 224 F.3d 806,

816 (6th Cir. 2000) (finding that “the Eleventh Amendment

is not jurisdictional in nature,” but addressing that issue

first where a state defendant had raised it). The Supreme

Court has not resolved this dispute.

The Court of Appeals for the Fifth Circuit well articulated

the view that a court must address Eleventh Amendment

issues first. Recognizing that courts often interpret statutes

so as to avoid constitutional problems, the court

distinguished cases relying on that practice by finding that

“[t]he Eleventh Amendment’s admonition is jurisdictional in

nature.” Texas Tech, 171 F.3d at 285. The court explained:

“While often noted for preserving state sovereignty, the

Amendment only accomplishes this end through

jurisdictional limitation. . . . Its negative instruction on how

24

to construe federal judicial power operates as an additional

boundary on that power, supplementing the restraints on

judicial power already implicitly provided in Article III of the

Constitution.” Id. The court recognized the Supreme Court’s

recent statement that the Eleventh Amendment “is not co-

extensive with the limitations on judicial power in Article

III,” Calderon, 523 U.S. at 745 n.2, 118 S.Ct. at 1697 n.2,

but opined that the Eleventh Amendment nonetheless is

“certainly intertwined with Article III jurisprudence,” Texas

Tech, 171 F.3d at 285 n.9.

Notwithstanding the views of the Court of Appeals for the

Fifth Circuit we are convinced that this “intertwining” does

not require that we apply the rule of Steel Co. in this case.

Rather, we are convinced that the Court of Appeals for the

First Circuit expressed a better view in Parella. In that case,

the court recognized the intertwined nature of the two

constitutional provisions, both of which place limits on

judicial power. Parella, 173 F.3d at 54. The court further

noted other characteristics of the Eleventh Amendment that

support such a view of the Eleventh Amendment, namely,

that the Eleventh Amendment can be raised for the first

time on appeal and that a court sua sponte may raise

Eleventh Amendment issues. Id. Nonetheless, the court

observed, “the nature of the Eleventh Amendment is more

complex than these decisions acknowledge.” Id. at 54-55.

For example, a state may waive Eleventh Amendment

immunity, and, although courts may raise Eleventh

Amendment issues sua sponte, they are not required to do

so. Id. (citing Schacht, 524 U.S. at 389, 118 S.Ct. at 2052).

The characteristics of Eleventh Amendment immunity the

court identified in Parella comport with Justice Kennedy’s

understanding that the Supreme Court’s “precedents have

treated the Eleventh Amendment as ‘enact[ing] a sovereign

immunity from suit, rather than as a nonwaivable limit on

the federal judiciary’s subject-matter jurisdiction.’ ”

Schacht, 524 U.S. at 394, 118 S.Ct. at 2055 (Kennedy, J.,

concurring) (quoting Idaho v. Coeur d’Alene Tribe, 521 U.S.

261, 267, 117 S.Ct. 2028, 2033 (1997)). Furthermore, as

the Court of Appeals for the First Circuit noted in Parella,

in Calderon the Supreme Court stated that the Eleventh

Amendment is not co-extensive with Article III’s limitations

25

and that it should consider the question whether an

inmate’s declaratory judgment action presented an Article

III case or controversy before it could consider the parties’

Eleventh Amendment and First Amendment contentions.

Parella, 173 F.3d at 55. If the Supreme Court considered

Eleventh Amendment immunity to be an Article III concern,

it would be expected that the Court at least would have

made reference to it when deciding the Article III question

rather than putting the immunity issue aside for

consideration after its resolution of the case or controversy

issue.

Finally, the main object underlying Steel Co. is that

courts not declare the law where they do not have Article III

jurisdiction because any opinion in such a situation would

be advisory, thus raising separation of powers problems.

Steel Co., 523 U.S. at 101, 118 S.Ct. at 1016. Eleventh

Amendment immunity, on the other hand, does not affect

a court’s underlying power to hear a given case or

controversy. If it did, courts would be obligated to raise

Eleventh Amendment issues sua sponte, but the Supreme

Court has held that they have no such obligation. See

Parella, 173 F.3d at 55-56 (citing Schacht, 524 U.S. at 387-

91, 118 S.Ct. at 2052-53). Furthermore, if the presence of

Eleventh Amendment immunity implicated case or

controversy concerns, states would not be able to waive

that immunity by their conduct in a given case.

The Eleventh Amendment’s limitations on judicial power

are, therefore, in the nature of a constitutional recognition

of the states’ sovereign immunity, not a statement of a

nonwaivable absence of subject-matter jurisdiction.

Accordingly, Eleventh Amendment cases do not raise the

same separation of powers concerns with respect to

hypothetical jurisdiction as do Article III standing cases.

We, therefore, hold that, notwithstanding Steel Co., a court

may reserve judgment on Eleventh Amendment issues even

when advanced by a state where it can resolve the case on

other grounds and the prevailing party on the merits would

be the same as the prevailing party if immunity were

recognized.15

15. Inasmuch as UMass does not urge that we resolve the Eleventh

Amendment questions before we decide the statutory contribution

26

We follow that course here. Even though, as will be seen,

our nonconstitutional disposition of this case will not be

easy, still it is better to decide the case on that basis than

to address the constitutional jurisdictional issues under the

Eleventh Amendment. Thus, we pass the Eleventh

Amendment issues with respect to UMass and in view of

our conclusions on the contribution issue dismiss its

appeal at No. 02-1789 as moot.

D. RIGHT TO CONTRIBUTION UNDER TITLE II AND

THE REHABILITATION ACT

In considering the right to contribution, we start with

section 504 of the Rehabilitation Act which provides: “No

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.”16 29 U.S.C.

questions, conceptually, at least, we could hold that it has waived its

Eleventh Amendment immunity to that very limited extent. See SCS

Bus., 173 F.3d at 892-93. Indeed, in its brief advancing its Eleventh

Amendment arguments, UMass urges that “the right of action for

contribution question should be addressed first, as its resolution may

avoid the need to address the constitutionality issues herein.” UMass Br.

at 18 n.3. Moreover, Delaware State has not raised the Eleventh

Amendment in this court and, therefore, regardless of what our

disposition of UMass’s Eleventh Amendment claims might be we,

nevertheless, could not avoid considering the contribution issues on this

appeal. See n.11, supra.

16. The district court held in its November 7, 2001 opinion that the

circumstances of the case are such that Temple might be able to obtain

contribution from the third-party defendants. Bowers, 171 F. Supp. 2d

at 397-98. We have some question about whether that holding was

correct but we neither accept nor reject it. See, e.g. Harka v. Nabati, 487

A.2d 432, 434-35 (Pa. Super. Ct. 1985) (Pennsylvania law). In this

regard, we point out that the alleged wrongs attributable to Temple and

the third-party defendants were independent to the extent that each

such university made its own determination with respect to Bowers. See

Cureton, 198 F.3d at 110 (NCAA “member institutions continue to make

individual admission decisions”). On the other hand, they acted similarly

because all followed the NCAA rules. We, however, will not decide this

case by a review of the district court’s view of whether contribution

might be available here, except with respect to statutory authorization,

inasmuch as neither UMass nor Delaware State has challenged the

district court’s holding on this point.

27

§ 794(a). The term “program or activity” includes “a college,

university, or other postsecondary institution, or a public

system of higher education.” Id. § 794(b)(2)(A). Though

section 504 does not in itself provide a private right of

action for aggrieved individuals, it does state that the

“remedies, procedures, and rights set forth in title VI of the

Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] shall

be available to any person aggrieved by any act or failure to

act by any recipient of federal financial assistance or federal

provider of such assistance under section 794 of this title.”

Id. § 794a(a)(2). Inasmuch as courts have held that Title VI

implies a private right of action, “private individuals may

sue to enforce § 601 of Title VI and obtain both injunctive

relief and damages.” Alexander v. Sandoval, 532 U.S. 275,

279, 121 S.Ct. 1511, 1516 (2001).

Title II of the ADA provides: “Subject to the provisions of

this subchapter, no qualified individual with a disability

shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. As

in the case of section 504, Title II does not, in terms, create

a private right of action. Instead, it provides that the

remedies, procedures and rights applicable to section 504

of the Rehabilitation Act also are applicable under Title II.

Id. § 12133.

Neither statute explicitly provides for a right to

contribution. The district court, however, found that such

a right exists by applying the reasoning in Musick, Peeler &

Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 113

S.Ct. 2085 (1993). UMass and Delaware State argue that

Musick is inapplicable in this case, and that, under Texas

Industries, Inc. v. Racliff Materials, Inc., 451 U.S. 630, 101

S.Ct. 2085 (1981), and Northwest Airlines, Inc. v. Transport

Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct.

1571 (1981), we should refuse to recognize a right to

contribution. Surprisingly, it appears that no federal

appellate court, at least of which we are aware, has

answered the question of whether there is a right to

contribution under Title II or under section 504 of the

Rehabilitation Act.

28

1. Right of Action or Remedy?

Preliminarily we consider whether we must determine if

a right of contribution is a right of action in itself or

whether it is a remedy. In an effort to distinguish this case

from Northwest Airlines and other cases derived from Cort

v. Ash, 422 U.S. 66, 95 S.Ct. 2080 (1975), in which the

Supreme Court narrowed the circumstances in which a

court may find an implied right of action, Temple argues

that the right of contribution is a remedy. In Temple’s view,

we, like the Supreme Court in Musick, should decline to

apply the strict test for implying a cause of action used in

Cort v. Ash, Northwest Airlines, and Texas Industries

because this case involves statutes that have been enforced

through judicially established rights of action rather than

through detailed remedial schemes. Temple argues that

instead we should apply a less exacting standard based on

Musick, asking only whether the availability of a right to

contribution should be implied as a proper part of the

liability apparatus created by the judiciary to enforce the

statutes. Temple Br. at 18. Thus, by treating the right to

contribution as a remedy, Temple not only seeks to avoid

the Cort v. Ash analysis, but also attempts to avail itself of

the principle that once a right and cause of action are

established, the federal courts are empowered broadly to

award any appropriate relief. See Franklin v. Gwinnett

County Pub. Schs., 503 U.S. 60, 70-71, 112 S.Ct. 1028,

1035-36 (1992).

This argument is something of a red herring, however. To

be sure, Supreme Court cases, at least since the 1970s,

have referred to rights, rights of action, and remedies

separately. Nonetheless, this case should not turn on our

characterization of the nature of contribution as the

Supreme Court has not determined whether contribution is

available by clearly distinguishing among rights, rights of

action, and remedies. Thus, in Northwest Airlines, the

Court stated: “Even though Congress did not expressly

create a contribution remedy, if its intent to do so may fairly

be inferred from either or both statutes, an implied cause

of action for contribution could be recognized on the basis of

the analysis used in cases such as Cort v. Ash . . . .” 451

U.S. at 90, 101 S.Ct. at 1580. In Texas Industries, the

29

Court, in deciding whether to find an implied right to

contribution, stated that its “focus, as it is in any case

involving the implication of a right of action, is on the intent

of Congress.” 451 U.S. at 639, 101 S.Ct. at 2066. Finally,

in Musick the Court refers to the right of contribution in

ways that could support an understanding of the claim as

either a right, a right of action, or a remedy. See 508 U.S.

at 291-92, 113 S.Ct. at 2088.

Thus, contribution cases are unlike discrimination cases,

in which the right at issue (the right to be free from

discrimination) is distinct from the remedy sought

(monetary or injunctive relief), in a way that makes

discussion of rights, rights of action, and remedies overlap.

Nevertheless, this inconsistency does not overly concern us

inasmuch as the key question before us is simply whether

Northwest Airlines/Texas Industries or Musick should guide

us and Musick did not distinguish the former cases as

“right of action” as opposed to remedy cases,17 but rather

did so on more analytic grounds that we will discuss

shortly.

2. Supreme Court Precedent Addressing Implied Rights

to Contribution

In Northwest Airlines, a class of flight attendants sued its

employer, Northwest Airlines, Inc., under the Equal Pay Act

and Title VII of the Civil Rights Act of 1964, challenging the

legality of the wage differential between pursers (who were

males) and stewardesses (who were females). The plaintiff

class won at trial, following which Northwest Airlines filed

a separate action stating a claim for contribution against

two unions that represented the employees with whom

Northwest Airlines had bargained collectively in setting the

employees’ wages. The Supreme Court held that there is

not an implied right to contribution under Title VII or the

17. Indeed, the Musick Court ultimately noted that it was being asked to

recognize “a cause of action that supports suit against these parties.”

508 U.S. at 292, 113 S.Ct. at 2088. We, too, are inclined to refer to

contribution as a cause of action in this context. In other words, Temple

asks us to recognize a cause of action for contribution, and the remedy

it will receive if successful on this cause of action is a monetary recovery.

30

Equal Pay Act. Northwest Airlines, 451 U.S. at 98, 101 S.Ct.

at 1584.

In Northwest Airlines, the Court explained that a right to

contribution can be created in either of two ways: either

Congress could have intended, explicitly or implicitly, to

create such a right under Cort v. Ash, or “a cause of action

for contribution may have become a part of the federal

common law through the exercise of judicial power to

fashion appropriate remedies for unlawful conduct.” Id. at

90, 101 S.Ct. at 1580. In examining the first possibility, the

Court explained: “In determining whether a federal statute

that does not expressly provide for a particular private right

of action nonetheless implicitly created that right, our task

is one of statutory construction. . . . The ultimate question

in cases such as this is whether Congress intended to

create the private remedy—for example, a right to

contribution—that the plaintiff seeks to invoke.” Id. at 91,

101 S.Ct. at 1580 (citation omitted). Factors relevant to

Congress’s intent include legislative history, the underlying

purpose and structure of the statutory scheme, and the

likelihood that Congress intended to supersede or to

supplement existing state remedies. Id., 101 S.Ct. at 1580

(citing Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088;

Cannon v. Univ. of Chicago, 441 U.S. 677, 689-709, 99

S.Ct. 1946, 1953-64 (1979)).

The Court then asked whether the language of the

statute demonstrated an intent to create a right of

contribution. Noting that neither statute expressly created

such a right, the Court explained that “[t]his omission,

although significant, is not dispositive if, among other

things, the language of the statutes indicates that they were

enacted for the special benefit of a class of which the

petitioner is a member.” 451 U.S. at 91-92, 101 S.Ct. at

1580-81. The Court concluded, however, that “it cannot

possibly be said that employers are members of the class

for whose especial benefit either the Equal Pay Act or Title

VII was enacted . . . . To the contrary, both statutes are

expressly directed against employers; Congress intended in

these statutes to regulate their conduct for the benefit of

employees . . . . In light of this fact, petitioner ‘can scarcely

lay claim to the status of “beneficiary” whom Congress

31

considered in need of protection.’ ” Id. at 92, 101 S.Ct. at

1581 (citation and footnotes omitted).

On this point, the Court specifically rebuked the court of

appeals, which had refused to apply Cort v. Ash literally in

evaluating the claim of a right to contribution. Id. at 92

n.25, 101 S.Ct. at 1581 n.25. The court of appeals had

asked, instead, whether employees could bring suit against

their unions under the statutes. The Court stated that this

inquiry confused the question whether the elements of a

contribution claim are established in a given case—a fact

the Court assumed in deciding the case and which, we also

assume here18—with the question of whether Congress

intended that contribution should be available under any

circumstances. Thus, “[t]he Court of Appeals erred . . .

because it failed to focus on whether the party seeking to

invoke the implied remedy is a member of a class that

Congress intended to benefit.” Id., 101 S.Ct. at 1581 n.25.

Next, the Court considered whether the structure of the

statutes might suggest that Congress intended to create a

right of contribution. Noting that both statutes established

“comprehensive programs designed to eliminate certain

varieties of employment discrimination” and contained

“express provision for private enforcement in certain

carefully defined circumstances, and provide[d] for

enforcement at the instance of the Federal government in

other circumstances,” the Court concluded that “[t]he

comprehensive character of the remedial scheme expressly

fashioned by Congress strongly evidences an intent not to

authorize additional remedies.” Id. at 93-94, 101 S.Ct. at

1581-82. The Court explained that “[i]t is, of course, not

within our competence as federal judges to amend these

comprehensive enforcement schemes by adding to them

another private remedy not authorized by Congress.” Id. at

94, 101 S.Ct. at 1582.

Finally, the Court noted that nothing in the legislative

history suggested a congressional intent to create a right to

contribution. Id., 101 S.Ct. at 1582. The Court recognized

18. We make this assumption in view of our determination that it would

be inappropriate, even if possible to do so, to decide this case on a

sufficiency of the pleading basis. See n.16, supra.

32

that it is not uncommon in an implied right of action case

to encounter such legislative silence and that, on its own,

such silence is not necessarily inconsistent with an intent

to create the remedy suggested. Id., 101 S.Ct. at 1582.

Nonetheless, in the absence of suggestions in the statutory

language or structure that Congress intended to create

such a right of action, “the essential predicate for

implication of a private remedy simply does not exist.” Id.,

101 S.Ct. at 1582.19

The Court also considered the second possible source of

a right of contribution, namely, federal common law. The

Court noted that, except in limited circumstances such as

cases involving the rights or duties of the United States or

resolution of interstate controversies, the courts’ power to

fashion federal common law is strictly limited. Id. at 95,

101 S.Ct. at 1582. The Court distinguished Cooper

Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct.

2174 (1974), in which it had found a nonstatutory right to

contribution in the admiralty setting, noting that the

constitutional grant of general admiralty jurisdiction to the

federal courts provides a basis for development of judge-

made rules in the area of maritime law. Id. at 95-96, 101

S.Ct. at 1583. Finally, the Court concluded that it should

not create a right to contribution where Congress had

“enacted a comprehensive legislative scheme including an

integrated system of procedures for enforcement.” Id., 101

S.Ct. at 1584. The Court left open the question whether

federal courts may have more power to fashion remedies in

other areas of the law, such as under the antitrust laws,

under which federal courts act more as common law

courts. Id. at 98 & n.42, 101 S.Ct. at 1584 & n.42.

That same term the Court addressed a question not

involved in but referred to in Northwest Airlines and

concluded that the antitrust laws do not confer on federal

courts the power to formulate a right to contribution where

Congress has not created the right explicitly. Texas Indus.,

19. In a footnote, the Court stated that in a case where neither the

statute nor the legislative history reveals a congressional intent to create

a private right of action for the benefit of the plaintiff, the Cort v. Ash

inquiry need continue no further. Id. 94 n.31, 101 S.Ct. at 1582 n.31.

33

451 U.S. at 646, 101 S.Ct. at 2070. The Court analyzed the

question of whether the antitrust laws establish a right of

contribution in the same manner as in Northwest Airlines.

It concluded that there was no congressional intent to

create such a right, noting that there was no indication of

such an intent in the language of the statute or in the

legislative history. Id. at 639, 101 S.Ct. at 2066. The Court

again noted that the statutes in question “were not adopted

for the benefit of the participants” in the prohibited conduct

in question. Id., 101 S.Ct. at 2066. Rather, the petitioner

was “ ‘a member of the class whose activities Congress

intended to regulate for the protection and benefit of an

entirely distinct class . . . .’ ” Id., 101 S.Ct. at 2066 (quoting

Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 37, 97 S.Ct.

926, 947 (1977) (emphasis in Texas Industries)). The Court,

therefore, concluded that any right to contribution could be

derived only from federal common law.

The Court then expanded on its discussion in Northwest

Airlines of federal courts’ power to recognize a right of

contribution as part of federal common law. The Court

explained that the power to formulate federal common law

is implicated in two basic types of cases: where a federal

rule of decision is necessary to protect “uniquely federal

interests,” and where “Congress has given the courts the

power to develop substantive law.” Id. at 640, 101 S.Ct. at

2067. The Court found that antitrust suits, which involve

the rights and interests of private parties, do not involve the

duties of the federal government, the distribution of powers

in the federal system, or matters necessarily subject to

federal control, and, therefore, do not involve “uniquely

federal interests.” Id. at 642, 101 S.Ct. at 2068.

With regard to the second type of case in which courts

have the power to formulate federal common law, the

paradigmatic case is Textile Workers Union v. Lincoln Mills,

353 U.S. 448, 77 S.Ct. 912 (1957), in which the Supreme

Court read section 301 of the Labor Management Relations

Act not only as a grant of jurisdiction over certain areas of

labor law but also as a grant of the power to develop

common law of labor-management relations. Texas Indus.,

451 U.S. at 642-43, 101 S.Ct. at 2068. The Court noted

that federal courts traditionally had broad common law

34

powers under the antitrust laws as well. Id. at 643, 101

S.Ct. at 2068. Nonetheless, the Court held that, although

Congress intended to give the courts the power to develop

common law defining violations of the antitrust laws, there

was no similar indication of congressional intent with

regard to the provisions of the antitrust laws providing for

treble damages and other remedies. Id. at 643-44, 101

S.Ct. at 1068-69. Instead, the Court held, the “detailed and

specific” remedial provisions set forth in the Sherman Act

give rise to a strong presumption that Congress deliberately

omitted a contribution remedy from the statute. Id. at 644-

45, 101 S.Ct. at 2069-70. The Court, therefore, concluded

that the antitrust laws do not confer on federal courts “the

broad power to formulate the right to contribution sought

here.” Id. at 646, 101 S.Ct. at 2070.

In Musick, however, the Court followed a different course,

distinguishing Northwest Airlines and Texas Industries and

holding that defendants in an action under Rule 10b-5 of

the Securities Exchange Commission adopted pursuant to

the Securities Exchange Act of 1934 have a right to seek

contribution under federal law. 508 U.S. at 297, 113 S.Ct.

at 2091. The Court distinguished Northwest Airlines and

Texas Industries, as well as the precedents on which those

cases were based, as follows:

The federal interests in both Texas Industries and

Northwest Airlines were defined by statutory provisions

that were express in creating the substantive damages

liability for which contribution was sought. Recognizing

that the applicable statutes did not ‘implicate “uniquely

federal interests” of the kind that oblige courts to

formulate federal common law,’ Texas Industries, 451

U.S. at 642, 101 S.Ct. at 2068, we asked whether

Congress ‘expressly or by clear implication’ envisioned

a contribution right to accompany the substantive

damages right created, id. at 638, 101 S.Ct. at 2066,

or, failing that, whether Congress ‘intended courts to

have the power to alter or supplement the remedies

enacted,’ id. at 645, 101 S.Ct. at 2069 . . . . But these

inquiries are not helpful in the present context. The

private right of action under Rule 10b-5 was implied by

the Judiciary on the theory courts should recognize

35

private remedies to supplement federal statutory

duties, not on the theory Congress had given an

unequivocal direction to the courts to do so. Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 737,

95 S.Ct. 1917, 1922, 1926, 44 L.Ed.2d 539 (1975).

Thus, it would be futile to ask whether the 1934

Congress also displayed a clear intent to create a

contribution right collateral to the remedy. [See

Franklin v. Gwinnett County Public Schools, 503 U.S.

60, 76, 112 S.Ct. 1028, 1039, 117 L.Ed.2d 208 (1992);

id. at 77, 112 S.Ct. at 1039 (Scalia, J., concurring)].

Id. at 290-91, 113 S.Ct at 2087-88. In response to the

argument that the precedents on which Northwest Airlines

and Texas Industries were based should control, the Court

continued:

This argument . . . would have much force were the

duty to be created one governing conduct subject to

liability under an express remedial provision fashioned

by Congress, or one governing conduct not already

subject to liability through private suit. That, however,

is not the present state of the jurisprudence we

consider here. The parties against whom contribution

is sought are, by definition, persons or entities alleged

to have violated existing securities laws and who share

joint liability for that wrong under a remedial scheme

established by the federal courts. Even though we are

being asked to recognize a cause of action that

supports a suit against these parties, the duty is but

the duty to contribute for having committed a wrong

that courts have already deemed actionable under

federal law. The violation of the securities laws gives

rise to the 10b-5 private cause of action, and the

question before us is the ancillary one of how damages

are to be shared among persons or entities already

subject to that liability. Having implied the underlying

liability in the first place, to now disavow any authority

to allocate it on the theory that Congress has not

addressed the issue would be most unfair to those

against whom damages are assessed.

We must confront the law in its current form. The

federal courts have accepted and exercised the

36

principal responsibility for the continuing elaboration

of the scope of the 10b-5 right and the definition of the

duties it imposes. As we recognized in a case arising

under § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a),

‘where a legal structure of private statutory rights has

developed without clear indications of congressional

intent,’ a federal court has the limited power to define

‘the contours of that structure.’ Virginia Bankshares,

Inc. v. Sandberg, 501 U.S. 1083, 1104, 111 S.Ct. 2749,

2764, 115 L.Ed.2d 929 (1991). As to this proposition

we were unanimous. See ibid. (SOUTER, J., joined by

REHNQUIST, C.J., and WHITE, O’CONNOR, and

SCALIA, JJ.); id., at 1114, 111 S.Ct., at 2768

(KENNEDY, J., joined by MARSHALL, BLACKMUN, and

STEVENS, JJ., concurring in part and dissenting in

part) (‘Where an implied cause of action is well

accepted by our own cases and has become an

established part of the securities laws . . . we should

enforce it as a meaningful remedy unless we are to

eliminate it altogether’). See also Blue Chip Stamps,

supra, at 737, 95 S.Ct., at 1926 (recognizing the

authority of federal courts to ‘define the contours of a

private cause of action under Rule 10b-5’ and ‘to flesh

out the portions of the law with respect to which

neither the congressional enactment nor the

administrative regulations offer conclusive guidance’).

Id. at 292-93, 113 S.Ct. at 2088-89. The Court found

support for its conclusions in two amendments to the

securities laws, in which Congress appeared to

acknowledge the judicially created Rule 10b-5 action

“without any further expression of legislative intent to

define it.” Id. at 294, 113 S.Ct. at 2089.

Having declined to follow Northwest Airlines and Texas

Industries, the Court turned to “the question whether a

right to contribution is within the contours of the 10b-5

action.” Id., 113 S.Ct. at 2089. The Court explained,

however, that its “task is not to assess the relative merits

of the competing rules, but rather to attempt to infer how

the 1934 Congress would have addressed the issue had the

10b-5 action been included as an express provision in the

1934 Act.” Id., 113 S.Ct. at 2090. The Court acknowledged

37

that this exercise may appear to be “not a promising

venture as a general proposition,” but, nonetheless, found

that other specific sections of the 1934 Act to which Rule

10b-5 was analogous provided a right of contribution. Id. at

295-97, 113 S.Ct. at 2090-91.

Beginning with the language of section 10(b) itself, the

Court noted that the text provided little guidance as to a

right to contribution, but found that “[h]aving made no

attempt to define the precise contours of the private cause

of action under § 10(b), Congress had no occasion to

address how to limit, compute, or allocate liability arising

from it.” Id. at 295, 113 S.Ct. at 2090. The Court then

compared Rule 10b-5 to the eight express liability

provisions in the 1933 Securities Act and the 1934

Securities Exchange Act, and found that it was most

similar to two provisions that conferred an explicit private

right of action, because both provisions targeted the same

danger that was the focus of section 10(b), because both

had the same purpose “to deter fraud and manipulative

practices in the securities markets and to ensure full

disclosure of information material to investment decisions,”

and because Rule 10b-5 defendants stood in a similar

position to defendants in actions based on the other two

provisions. Id. at 296, 113 S.Ct. at 2090-91. Because those

two provisions each contained “nearly identical express

provisions for a right to contribution,” the Court concluded:

“Absent any showing that the implied § 10(b) liability

structure or the 1934 Act as a whole will be frustrated by

finding a right to contribution paralleling the right to

contribution in analogous express liability provisions, our

task is complete and our resolution clear: Those charged

with liability in a 10b-5 action have a right to contribution

against other parties who have joint responsibility for the

violation.” Id. at 298, 113 S.Ct. at 2091-92.

3. Applicability of Musick Analysis

Although the Court’s decision in Musick may seem to

have been something of a departure from the course it

appeared to be setting in Northwest Airlines and Texas

Industries, we can read the three cases harmoniously.

When a statute creates a private right of action but fails to

38

provide expressly for a right to contribution, particularly if

the remedial scheme created is detailed, Congress’s silence

with regard to contribution weighs heavily against implying

such a right because there is a presumption that the

silence reflects congressional intent not to create such a

right. On the other hand, when courts have implied a right

of action it would be “futile” to look for congressional intent

to create a right to contribution, inasmuch as Congress did

not intend explicitly to create the cause of action on which

such a right would be based. Musick, 508 U.S. at 291, 113

S.Ct. at 2088. In that situation, courts have somewhat

broader latitude to determine whether a right to

contribution is consistent with Congress’s intent in creating

the right sought to be enforced. The first question we must

resolve, therefore, is whether the private rights of action

under section 504 of the Rehabilitation Act and Title II are

express or implied.

This question is not as easily answered as one might

expect.20 In discussing rights and remedies available to

aggrieved persons, Title II cross-references the

Rehabilitation Act, which in turn cross-references Title VI of

the Civil Rights Act of 1964. Title II was enacted in 1990,

while the Title VI cross-reference of the Rehabilitation Act

was enacted in 1978. By 1978, courts had recognized a

private right of action under Title VI for at least a decade.

Cannon, 441 U.S. at 696-97, 99 S.Ct. at 1957 (finding

support, in a case decided in 1979, for a holding that Title

IX of the Educational Amendments of 1972, which was

modeled on Title VI, creates a private right of action from

the fact that a 1967 decision of the Court of Appeals for the

Fifth Circuit, Bossier Parish School Board v. Lemon, 370

F.2d 847 (5th Cir. 1967), finding a private right of action

under Title VI “was repeatedly cited with approval and

never questioned during the ensuing five years” and by

“presuming both that [the members of Congress who

enacted Title IX in 1972] were aware of the prior

interpretation of Title VI and that that interpretation

reflects their intent with respect to Title IX”).

20. All parties seem to assume in their briefs that private rights of action

under both acts have been implied by courts.

39

Thus, although the remedy available to persons aggrieved

by violations of the Rehabilitation Act and Title II is at root

an implied one, those statutes, by cross-referencing Title

VI, which already had been interpreted as creating a private

right of action, arguably contain explicit provisions creating

a private right of action. Indeed, the legislative history

discussing Title II’s cross-reference to sections 504 and 505

of the Rehabilitation Act explicitly states: “As with section

504, there is also a private right of action for persons with

disabilities, which includes the full panoply of remedies.”

H.R. Rep. No. 101-485, pt. 2, at 98, reprinted in 1990

U.S.C.C.A.N. 303, 381; id., pt. 3, at 52, reprinted in 1990

U.S.C.C.A.N. 445, 475 (“As in title I, the Committee adopted

an amendment to delete the term ‘shall be available’ in

order to clarify that Rehabilitation Act remedies are the only

remedies which title II provides for violations of title II. The

Rehabilitation Act provides a private right of action, with a

full panoply of remedies available, as well as attorney’s

fees.”).

Thus, Title II and section 504 are unlike Title VII of the

Civil Rights Act of 1964 or the antitrust laws, which spell

out the private right of action available to aggrieved

individuals, but are also unlike Rule 10b-5, which does not

by its language contemplate any sort of private right of

action. Of course, both the statutory language and the

legislative history of Title II and section 504 are silent with

respect to a right of contribution. The cross-reference

language in both acts, therefore, could support two distinct

inferences with respect to Congress’s intent: either

Congress intended to make available to aggrieved persons

the Title VI rights and remedies in place at the time of

passage of the two provisions (1978 for the Rehabilitation

Act and 1990 for the ADA) or Congress intended to allow

the rights and remedies under Title II and section 504 to

expand and retract as the courts defined the contours of

Title VI liability.

If the former is true, then we can say that, because

reported cases had not found a right to contribution under

Title VI as of 1978 or 1990 (or indeed as of the present),

Congress must not have considered a right to contribution

to be a part of the liability scheme of Title VI that should be

40

incorporated into the liability schemes of section 504 and

Title II. In other words, even though Congress

acknowledged the private right of action under Title VI,

which had been recognized by courts since at least 1967,

and intended to make a similar private right of action

available under section 504 and Title II, Congress could not

be said to be acknowledging a right to contribution under

Title VI, as the courts had not yet recognized that right.

Congress likely would have included language explicitly

providing for a right to contribution had it intended to

expand the Title VI rights and remedies incorporated into

section 504 and Title II. On the other hand, if we draw the

latter reference, then we should read the cross-referencing

language as an acknowledgment not of solely those rights

and remedies available at the time of passage of the acts

(e.g., a private right of action but not a right to

contribution) but also of the power of federal courts to

define the contours of Title VI (and, therefore, section 504

and Title II) liability in much the same way a common law

court might.

We find that Congress’s decision to incorporate Title VI’s

rights and remedies, including those defined by courts

rather than by Congress itself, into the Rehabilitation Act

and Title II by simple cross-reference, without attempting to

define more precisely those rights and remedies, constitutes

a recognition on Congress’s part of the somewhat broader

role of federal courts in defining the contours of Title VI

(and, therefore, section 504 and Title II) liability. Congress’s

use of cross-referencing language in section 504 and Title

II is similar, in analytic terms, to the amendments to the

securities laws considered by the Musick Court. Those two

amendments made explicit reference to “any cause of action

implied from a provision under this title” and to “any

private civil action implied under . . . this title.” Musick, 508

U.S. at 293-94, 113 S.Ct. at 2089. From this language, the

Court reached the same conclusion we reach here with

respect to section 504 and Title II: “We infer from these

references an acknowledgment of the 10b-5 action without

any further expression of legislative intent to define it.” Id.

at 294, 113 S.Ct. at 2089. The Court used this inference to

support its recognition of “judicial authority to shape,

within limits, the 10b-5 cause of action.” Id. at 293, 113

41

S.Ct. at 2089. Similarly, through the cross-referencing

language of the Rehabilitation Act and Title II, Congress

acknowledged the private Title VI right of action implied by

courts, but made no effort to define it more precisely.21

“That task, it would appear, Congress has left to us.” Id. at

294, 113 S.Ct. at 2089.

The legislative history of the ADA lends some support to

this view. In its discussion of Title III of the ADA, which

prohibits discrimination in public accommodations and,

therefore, cross-references the parallel Title II of the 1964

Civil Rights Act of 1964, the legislative history states: “As

with other titles of the bill, the Committee intends that

persons with disabilities have remedies and procedures

parallel to those available under comparable civil rights

laws. Thus, if the remedies and procedures change in title

II of the 1964 Act, . . . they will change identically in this

title for persons with disabilities.” H.R. Rep. No. 101-485,

pt. 3, at 66, reprinted in 1990 U.S.C.C.A.N. 445, 490

(emphasis added).

Furthermore, Congress rejected the minority view of

certain members that an amendment to Title I, which

prohibits employment in discrimination and cross-

references the parallel Title VII of the Civil Rights Act of

1964, should be adopted that would provide expressly for

only then-existing Title VII remedies. Id., pt. 2, at 167,

reprinted in 1990 U.S.C.C.A.N. 303, 444-45. The minority

members were concerned that Congress was considering

the Civil Rights Act of 1990, which would amend Title VII

to include punitive and compensatory damages as well as

21. Indeed, as noted above, the legislative history of the ADA makes even

more plain Congress’s recognition of the judicially implied private right

of action under Title VI and section 504: “As with section 504, there is

also a private right of action for persons with disabilities, which includes

the full panoply of remedies.” H.R. Rep. No. 101-485, pt. 2, at 98,

reprinted in 1990 U.S.C.C.A.N. 303, 381. Furthermore, the Supreme

Court has noted that section 1003 of the Rehabilitation Act, which was

enacted in 1986 to abrogate the states’ immunity to suit and which

referred to remedies at law and in equity “ ‘cannot be read except as a

validation of Cannon’s holding’ ” that Title VI creates a private right of

action. Alexander, 532 U.S. at 280, 121 S.Ct. at 1516 (quoting Franklin,

503 U.S. at 72, 112 S.Ct. at 1036).

42

injunctive relief and backpay, and, by reason of the cross-

reference in Title I, might be thought to allow such damages

in cases under Title I of the ADA as well. Id. Indeed,

Representative Sensenbrenner offered an amendment on

the last day of debate on the ADA that would have replaced

Title I’s cross-referencing language with express remedial

provisions permitting only injunctive relief and the award of

back pay. 136 Cong. Rec. H2599-01, H2612, 1990 WL

67606. In the ensuing debate, however, many other

members of Congress expressed the view succinctly

expressed by Representative Edwards, namely, that “the

heart of the Americans with Disabilities Act is to give the

same civil rights protections to persons with disabilities

that racial minorities and women have.” Id. at H2615

(statement of Rep. Edwards); see also, e.g., id. (statement of

Rep. Schroeder); id. at 2616 (statement of Rep. Glickman);

id. (statement of Rep. Fish); id. at 2618 (statement of Rep.

Bartlett); id. at 2620 (statement of Rep. Mazzoli). The

proposed amendment subsequently was defeated and

Congress approved the cross-referencing language on the

theory that persons discriminated against on the basis of a

disability should receive the same remedies as those

subject to discrimination on the basis of race or sex.

Although this legislative history does not reveal explicitly

Congress’s view of the courts’ role in defining the contours

of the rights and remedies under the ADA, when taken

together with Congress’s implicit acknowledgment of the

judicially created private Title VI right of action and failure

to define that action further, it supports the inference that

Congress intended to leave to the courts the task of

defining the contours of liability—including the existence of

a right of contribution—under Title VI, section 504 of the

Rehabilitation Act, and Title II of the ADA. Of course, in

turning to the question whether a right of contribution is

within the contours of the private section 504 and Title II

actions, we must not consider the relative efficiencies or

equities of the parties’ arguments, but rather must ask how

the Congresses that enacted the Rehabilitation Act and the

ADA would have addressed the issue had the private rights

of action under those acts been included as express

provisions. See Musick, 508 U.S. at 294, 113 S.Ct. at 2089-

90. Unlike the 1934 Congress whose actions in enacting

43

section 10(b) were considered in Musick, however, both

Congresses in this case clearly contemplated the existence

of some private right of action, even if they did intend to

leave further definition of that right to the courts. That no

right to contribution under Title VI had been recognized

when the Rehabilitation Act and Title II were enacted and

that Congress did not provide explicitly for such a right

suggests that Congress did not intend for such a right to

exist. We do not regard this evidence as conclusive,

however, but must weigh it along with the other

considerations that the Musick court identified.

4. Application of Musick Analysis

In holding that a right to contribution was consistent

with the overall structure of the 1934 act, the Musick Court

considered express liability provisions of the 1933 and

1934 acts and found that two of the eight express liability

provisions in the 1934 act were analogous to Rule 10b-5 in

structure, purpose, and intent. Because those provisions

expressly created a right to contribution, the Court held

that implying such a right in a Rule 10b-5 action was

consistent with the 1934 act. Id. at 295-97, 113 S.Ct. at

2090-91. The Court also found relevant the fact that most

courts of appeals had recognized a right to contribution in

Rule 10b-5 actions for more than 20 years. Id. at 297-98,

113 S.Ct. at 2091.

UMass and Delaware State argue that, in considering

analogous statutes, we need look no further than section

503 of the Rehabilitation Act and Title I of the ADA, which

prohibit discrimination in employment and which, because

their remedies are derived from Title VII of the Civil Rights

Act of 1964, do not, after Northwest Airlines, create a right

of contribution. Temple argues that the purpose of section

504 and Title II is not simply to prohibit discrimination but

also, unlike other civil rights laws such as section 503 and

Title I, to regulate recipients of federal funds and ensure

that government money is not spent on programs that

discriminate. Temple suggests that, because section 504

and Title II are examples of Spending Clause legislation, we

should look to contract law, not to other civil rights

44

statutes, in deciding whether to allow a right to

contribution.22 Temple Br. at 26-32.

In Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097

(2002), the Supreme Court held that punitive damages are

not available under Title II and section 504. Relying on the

contract analogy, the Court stated that “[a] funding

recipient is generally on notice that it is subject not only to

those remedies explicitly provided in the relevant

legislation, but also to those remedies traditionally available

in suits for breach of contract.” Id. at 187, 122 S.Ct. at

2101. The Court explained its holding in Franklin that

compensatory damages are available under Title IX of the

Educational Amendments of 1972, although not expressly

provided, and its holding in Cannon that injunctive relief is

similarly available on the grounds that those remedies are

“forms of relief traditionally available in suits for breach of

contract.” Id., 122 S.Ct. at 2101. Punitive damages,

however, are not generally available for breach of contract,

and the Court, therefore, held that they should not be

available under Title II and section 504 either. Id. at 187-

88, 122 S.Ct. at 2102. But Temple argues that contribution

is different as it generally is available in suits for breach of

contract. See 12 Samuel Williston, Law of Contracts § 36.14

(4th ed. 1999).

The Court in Barnes stated that the contract law analogy

may apply in Spending Clause cases defining the scope of

damages remedies, deciding whether a damages remedy is

available at all, and “defining the scope of conduct for

22. In support of this contention, Temple cites Chemung Canal Trust Co.

v. Sovran Bank/Maryland, 939 F.2d 12, 15-16 (2d Cir. 1991), in which

the Court of Appeals for the Second Circuit held that a defendant in an

ERISA breach of fiduciary duty case had a right to contribution as a

matter of federal common law because trust law, on which ERISA was

based, traditionally allowed contribution. The court found its power to

recognize such a right in the Supreme Court’s unequivocal statements

that “ ‘courts are to develop a federal common law of rights and

obligations under ERISA-regulated plans.’ ” Id. at 16 (quoting Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954

(1989) (internal quotation omitted)). However, inasmuch as Title VI, the

Rehabilitation Act, and the ADA do not confer a similarly broad common

law power on the courts, Chemung is of little value to us in this case.

45

which funding recipients may be held liable for money

damages.” Id. at 186-87, 122 S.Ct. at 2101. The principle

supporting the analogy in each of these types of cases is

that in Spending Clause cases “ ‘in return for federal funds,

the [recipients] agree to comply with federally imposed

conditions.’ ” Id. at 186, 122 S.Ct. at 2100-01 (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17,

101 S.Ct. 1531, 1540 (1981) (alteration in original)). In

other words, the task for courts in such cases is to define

the “contractual” terms, that is, to hold recipients to the

terms of their bargain but not to impose conditions of

which the recipient could not fairly have been aware.

Although we may assume that a defendant in a

traditional common law breach of contract case would be

entitled to contribution, we share the sentiment expressed

by two Justices in the 5-4 Barnes majority, namely that

“the contract-law analogy may fail to give such helpfully

clear answers to other questions that may be raised by

actions for private recovery under Spending Clause

legislation . . . .” Id. at 191, 122 S.Ct. at 2103 (Souter, J.,

and O’Connor, J., concurring); see also id. at 186, 122

S.Ct. at 2101 (majority opinion) (“[W]e have been careful not

to imply that all contract-law rules apply to Spending

Clause legislation . . . .” (emphasis in original)). Unlike the

Court in Barnes and the cases cited therein, such as

Franklin and Pennhurst, we are being asked here to

formulate a right that belongs not to a member of the class

Congress sought to protect, but that instead benefits solely

a violator of the duties Congress created for the protection

of that class.23 This case, therefore, does not fit easily

within the line of cases relying on the “ ‘traditional

presumption in favor of any appropriate relief for violation

of a federal right’ ” in finding implied remedies. Id. at 185,

122 S.Ct. at 400 (quoting Franklin, 503 U.S. at 73, 112

S.Ct. at 1036) (emphasis in Barnes). Because Barnes used

the contract-law analogy to determine the scope of

23. It, of course, should be understood that we are not suggesting that

Temple violated anything. Rather, if Bowers is to prevail in this action,

he must carry the burden to establish that it did so. We simply refer to

Temple as though it is a violator because unless it is the contribution

issue evaporates.

46

“appropriate relief ” under Franklin, that analogy can be of

only limited use to us here, where the Franklin presumption

does not apply.

Thus, in looking for analogous provisions under Musick,

we look, as did the Musick Court, to other sections of the

legislation creating the cause of action sued on for

guidance, not to contract law. To do otherwise, we would

have to read Musick as conferring a broad common law

power on the federal courts to create a right of contribution

in cases involving an implied right of action as long as the

court could find support for such a right in any other

analogous area of the law. Musick, however, does not give

the federal courts such broad power. A court must look not

to any analogous area of the law, but rather to the intent

of Congress insofar as the court can distill that intent from

the structure and language of the legislation as a whole. In

this case we, therefore, look to the rest of the ADA and the

Rehabilitation Act for guidance.24

In particular, we look to other provisions of these

statutes that are “close in structure, purpose, and intent”

to the private right of action under Title II and section 504.

Id. at 295, 113 S.Ct. at 2090. In Musick, the Court found

that two sections of the 1934 act are close in structure,

24. Temple vigorously argues that we should not look to Title I of the

ADA or Title VII, on which Title I of the ADA is based, in deciding

whether a right to contribution is consistent with the statutory scheme

as a whole because the purposes behind the two sets of statutes are

different. Temple Br. at 27-28. We recognize that while Title VII is clearly

remedial civil rights legislation designed to protect individuals, Title VI

has the twin goals of protecting individuals and of regulating the use of

federal funds in public programs. See Cannon, 441 U.S. at 704, 99 S.Ct.

at 1961. Temple urges us to ignore Title VII and to focus instead on

whether a right to contribution is consistent with the purpose of Title VI

to regulate recipients of federal funds. Whatever the merits of Temple’s

argument that a right to contribution is consistent with that goal, we are

unwilling to ignore the twin goal of Title VI to protect individuals from

discrimination in public programs. Moreover, we must not ask whether

a right to contribution is desirable as a policy matter, but whether the

Congresses that enacted Title II and section 504 would have provided for

such a right if they had created a private right of action. Musick, 508

U.S. at 294, 113 S.Ct. at 2089-90. For both of these reasons, we turn for

guidance to Title I of the ADA and to Title VII.

47

purpose, and intent to the Rule 10b-5 action for two

reasons: (1) they target the precise dangers that are the

focus of section 10(b) and are motivated by the same intent

to deter fraud in the securities market and to ensure full

disclosure of material information; and (2) they impose

liability on defendants who stand in a position most similar

to 10b-5 defendants for the sake of assessing whether they

should be entitled to contribution. 508 U.S. at 295-96, 113

S.Ct. at 2090-91. Looking to the other liability provisions of

the Rehabilitation Act and the ADA, it is clear that none are

as close in structure, purpose, and intent to the private

section 504 and Title II actions as the two 1934 act

provisions used by the Court in Musick are to Rule 10b-5.

Yet, because those provisions closest in structure, purpose,

and intent to section 504 and Title II and the legislative

history and structure of the statutes do not suggest that

Congress would have created a right to contribution had it

created an explicit private right of action for violations of

either section 504 or Title II, we hold that there is no right

to contribution under either of those provisions.

Among the declared purposes of the Rehabilitation Act of

1973 was authorization of programs to develop and

implement comprehensive and continuing state plans for

meeting the need for providing vocational rehabilitation

services to disabled persons “and to provide such services

for the benefit of such individuals,” Rehabilitation Act of

1973, Pub. L. No. 93-112, § 2(1) (1973) (emphasis added);

to “initiate and expand services to groups of handicapped

individuals . . . who have been underserved in the past,” id.

§ 2(6); and to “promote and expand employment

opportunities in the public and private sectors for

handicapped individuals and to place such individuals in

employment,” id. § 2(8). The statement of purpose was

amended in 1978, simultaneously with the amendments

creating private rights of action by cross-reference to read:

“The purpose of this Act is to develop and implement,

through research, training, services, and the guarantee of

equal opportunity, comprehensive and coordinated

programs of vocational rehabilitation and independent

living.” Pub. L. No. 95-602, § 122(a)(1) (1978).

To further this purpose, Title V of the Rehabilitation Act

prohibits certain entities from discriminating against

48

persons with disabilities. Section 501 requires all executive

branch agencies and departments to submit affirmative

action plans for the hiring and advancement of disabled

persons and prohibits discrimination on the basis of

disability in federal employment. 29 U.S.C. § 791. Section

503 requires all federal contractors to take affirmative

action to employ and advance in employment qualified

persons with disabilities. Id. § 793. Finally, section 504

prohibits any program or activity receiving federal funds

from discriminating against persons with disabilities. Id.

§ 794. From 1973 to 1978, the federal courts generally

began to recognize a private right of action under section

504, but not under section 501, while the courts were split

on the question whether a private right of action existed

under section 503. See Smith v. United States Postal Serv.,

742 F.2d 257, 259 (6th Cir. 1984). In 1978, Congress

amended the act to create private remedies for violations of

sections 501 and 504 in order to clarify the confusion in

the lower courts. Id. Congress, however, did not create a

right of action under section 503 with the 1978

amendments, and every court of appeals facing the

question since has held that an implied right of action does

not exist under that provision. See 2 Americans With

Disabilities: Practice and Compliance Manual § 8:272

(2003) (compiling cases from every court of appeals).

Section 501 is, therefore, the only other liability provision

in the Rehabilitation Act that is even arguably similar to

section 504. While the analogy is not perfect, the two

sections share the basic goal of protecting persons with

disabilities from discrimination, much in the same way as

the statutes at issue in Musick shared the common goal of

deterring fraud and ensuring full disclosure of material

information. Furthermore, defendants in a section 501

action “stand in a position” similar to defendants in a

section 504 action in that the two sections impose direct

liability on defendants for their own acts as opposed to

derivative liability. See Musick, 508 U.S. at 296, 113 S.Ct.

at 2090. But section 501 does not provide for a right to

contribution, nor does any court appear to have recognized

a right to contribution in a section 501 action.25 Indeed,

25. Of course, the circumstances in which a court might be asked to

recognize such a right in a section 501 case are not clear, inasmuch as

the United States is likely to be the only defendant in the case.

49

there is no provision of the Rehabilitation Act that appears

to contemplate the existence of a right to contribution.

More importantly, section 501 rights and remedies are

derived from Title VII, which, under Northwest Airlines,

does not create a right of contribution. Thus, inasmuch as

Congress took no action in 1978, when it created private

rights of action by cross-reference under sections 501 and

504, to create a right to contribution, and because no such

right explicitly or implicitly exists in section 501 or any

other section of the Rehabilitation Act, we are unable to

infer that Congress in 1978 would have created such a

right had it crafted a more explicit private remedial scheme

for violations of section 504. Thus, we reach our conclusion

that there is no right to contribution under section 504 of

the Rehabilitation Act.

Similarly, nothing in the ADA counsels in favor of

recognizing a right to contribution for violations of Title II.

The ADA’s goals are familiar: (1) to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities; (2) to

provide clear, strong, consistent, enforceable standards

addressing discrimination against individuals with

disabilities; (3) to ensure that the federal government plays

a central role in enforcing the standards established on

behalf of individuals with disabilities; and (4) to invoke the

sweep of congressional authority, including the power to

enforce the Fourteenth Amendment and to regulate

commerce, in order to address the major areas of

discrimination faced day-to-day by people with disabilities.

42 U.S.C. § 12101(b). Title I of the ADA prohibits

discrimination in employment and provides that rights and

remedies available under Title VII of the Civil Rights Act of

1964 are available under Title I. Id. § 12117. Title II

prohibits discrimination by a “public entity.” Id. § 12132.

Rights and remedies available under section 504 of the

Rehabilitation Act are available under Title II. Id. § 12133.

Finally, Title III prohibits discrimination in public

accommodations. Id. § 12182. Rights and remedies

available under Title II of the Civil Rights Act of 1964 are

available under Title III. Id. § 12188.

50

Although all three titles have similar purposes, that is, to

eliminate discrimination in the sphere each one covers,

Title I is more analogous to Title II than is Title III because

Title I defendants stand in a position similar to Title II

defendants for reasons comparable to those we discussed

above with respect to defendants under sections 501 and

504 of the Rehabilitation Act. On the other hand, Title III

defendants cannot be liable for money damages. Id.

§ 12188(a); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.

2002). Title I does not provide for a right to contribution

nor does any court appear to have implied such a right.

Furthermore, under Northwest Airlines, contribution is not

available under Title VII. Even were we to consider Title III

as another possibly analogous provision, neither Title III

nor Title II of the Civil Rights Act of 1964 appears ever to

have been held to create a right to contribution. Thus, we

reach our conclusion that there is no right to contribution

under Title II of the ADA. We, therefore, will reverse the

district court’s orders of November 7, 2001, and March 6,

2002, appealed at No. 02-3236, with respect to UMass and

Delaware and remand the matter to the district court to

dismiss the contribution claims against them under both

section 504 and Title II.

We close with a final observation. In this case, we hold

that Temple cannot have a right of contribution from

UMass or Delaware State and, as Bowers has not sued

them directly and there are no other claims pending against

them, they will be dismissed from this action. But at this

time we cannot be certain as to how the proceedings will go

forward (beyond the case being dismissed as to all three

third-party defendants) and we, therefore, cannot know

whether Bowers will recover judgments against the

defendants and, if so, whether the damages recovered will

be duplicative and, indeed, how the district court will

submit the case to the jury or, in the absence of a jury trial,

itself calculate damages if Bowers establishes that the

defendants are liable. Thus, we want to make clear that we

do not intend to bar a party satisfying a judgment from

seeking reimbursement in part from other judgment

debtors. It may be that the district court will avoid the

possibility that recovery against defendants will overlap by

separating Bowers’s case against the various defendants so

51

that damages against a liable defendant are ascertained

individually. But we cannot be sure that this can or will be

done, though surely it would be desirable to do so. In any

event, we do not intend by this opinion to preclude the

district court from entertaining arguments and granting

relief to a party satisfying a judgment for which more than

one defendant is responsible by allowing it to make a

recovery from other defendants on some principle provided

it is consistent with this opinion.

IV. CONCLUSION

For the foregoing reasons we will dismiss the appeals of

Iowa at No. 01-4492, Memphis at No. 01-4226, and UMass

at No. 02-1789. We will reverse the orders of the district

court of November 7, 2001, and March 6, 2002, in No. 02-

3236 insofar as the court finds that Temple has alleged a

valid claim for contribution against the third-party

defendants UMass and Delaware State. We will remand the

case to the district court for further proceedings to carry

out the directions in this opinion. In particular, Temple

should refile its notice of dismissal as to Memphis and the

district court shall dismiss the third-party complaints

against UMass and Delaware State. Costs will be taxed in

favor of UMass and Delaware State against Temple in No.

02-3236 but not in No. 02-1789. As between Iowa and

Bowers costs shall be taxed in favor of Bowers. As between

Memphis and Temple, no costs shall be taxed on this

appeal at this time but Memphis may move in the district

court for costs and counsel fees.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit