Miller v. TX Tech Univ Hlth

United States Court of Appeals

Fifth Circuit

F I L E D

In the May 13, 2003

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

_______________

m 02-10190

_______________

LUCINDA G. MILLER

AND

ELAINE KING MILLER,

Plaintiffs-Appellees,

VERSUS

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

Before SMITH, BARKSDALE, and enjoys state sovereign immunity from King

EMILIO M. GARZA, Circuit Judges. Miller’s § 504 claim. On the basis of Pace v.

Bogalusa City Sch. Bd., 325 F.3d 609 (5th

JERRY E. SMITH, Circuit Judge: Cir. 2003),1 which binds us, we reverse and

remand with instruction to dismiss the claim.

Texas Tech University Health Sciences

Center (“Tech”) appeals an order denying its

motion to dismiss Elaine King Miller’s claim of 1

See also Johnson v. La. Dep’t of Educ., No.

a violation of § 504 the Rehabilitation Act of

02-30318, 2003 U.S. App. LEXIS 8482 (5th Cir.

1973, 29 U.S.C. § 794. Tech argues that it May 5, 2003) (following Pace).

I. of the United States” from extending to suits

King Miller began working as an against a state “by Citizens of another State, or

administrator and professor at Tech in 1997. by Citizens or subjects of any Foreign State.”

She notified Tech that she suffered from a U.S. CONST. amend. XI. Some therefore refer

degenerative eye condition in August 1998; to the states’ immunity from suit as “Eleventh

she was diagnosed as legally blind in 1999. In Amendment immunity.”

2000, she sued Tech for allegedly failing to

accommodate her disability in violation of Yet, “[t]he phrase is . . . something of a

§ 504, which prohibits discrimination against misnomer, for the sovereign immunity of the

the disabled by programs receiving federal States neither derives from nor is limited by

funds.2 the terms of the Eleventh Amendment.” Alden

v. Maine, 527 U.S. 706, 713 (1999). Rather,

Tech concedes that King Miller suffers a state sovereign immunity is a structural

“disability” as defined in § 504 and that Tech constitutional principle barring all suits against

received federal funds from 1998 to 2000. a state, including suits by a resident of the

Nevertheless, Tech moved to dismiss on the state. S.C. State Ports Auth., 535 U.S. at 753

basis of state sovereign immunity. The district (“[T]he Eleventh Amendment does not define

court denied the motion, and Tech filed this the scope of the States’ immunity; it is but one

interlocutory appeal.3 particular exemplification of that immunity.”).

Thus, King Miller’s § 504 claim is subject to

II. Tech’s sovereign immunity,4 even though King

“[T]he [Constitutional] Convention did not Miller is a resident of Texas.

disturb States’ immunity from private suits,

thus firmly enshrining this principle in our con- The Supreme Court has recognized two ex-

stitutional framework.” Fed. Mar. Comm’n v. ceptions to the doctrine of state sovereign im-

S.C. State Ports Auth., 535 U.S. 743 (2002). munity. Coll. Sav. Bank v. Fla. Prepaid Post-

The Eleventh Amendment partially reflects this secondary Educ. Expense Bd., 527 U.S. 666,

principle by prohibiting “[t]he Judicial power 670 (1999). First, Congress may abrogate

state sovereign immunity using its power un-

der section 5 of the Fourteenth Amendment.

2

Section 504 states in pertinent part, “No Id. King Miller does not contend that

otherwise qualified individual with a disability . . . Congress has abrogated Tech’s sovereign

shall, solely by reason of her or his disability, be immunity against her claim. Congress indeed

excluded from participation in, be denied the bene- purported to abrogate state sovereign

fits of, or be subjected to discrimination under any immunity against § 504 claims. 42 U.S.C. §

program or activity receiving Federal financial as- 2000d-7 (“A State shall not be immune under

sistance . . . .” 29 U.S.C. § 794(a). the Eleventh Amendment . . . from suit in

3

A denial of a motion to dismiss based on state

Federal court for a violation of section

sovereign immunity is appealable. Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

4

506 U.S. 139, 143-45 (1993). King Miller’s other King Miller concedes that Tech is an arm of

causes of action and those of her co-plaintiff, Lu- the state and therefore entitled to Texas’s sovereign

cinda Miller, are awaiting trial pending our deci- immunity. See, e.g., Perez v. Region 20 Educ.

sion in this appeal. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002).

2

504[.]”). We held in Reickenbacker v. Foster, Congress may require states to waive their

274 F.3d 974 (5th Cir. 2001), that § 2000d-7 sovereign immunity as a condition for

did not validly abrogate state sovereign receiving federal funds.” Id. at 615 (citing

immunity under the Supreme Court’s recent Coll. Sav. Bank, 527 U.S. at 686-87). We

caselaw.5 make two inquiries in determining whether a

state has waived its sovereign immunity by

Second, a state may waive its sovereign im- accepting federal funds. First, “Congress must

munity by consenting to suit. Coll. Sav. Bank, ‘manifest[ ] a clear intent to condition

527 U.S. at 670. A state may waive its participation in the programs funded under the

immunity for its own reasons or, as the [relevant] Act on a State’s consent to waive its

Supreme Court has suggested, in exchange for constitutional immunity.’” Id. (quoting Atas-

some “gratuity” from Congress. Id. at 686. cadero State Hosp. v. Scanlon, 473 U.S. 234,

King Miller argues that § 2000d-7 conditions 247 (1985)). Second, we ask whether the

the receipt of federal funds on a waiver of sov- state knowingly and voluntarily intended to

ereign immunity and that Tech waived its sov- waive its immunity by accepting the funds. Id.

ereign immunity by accepting funds. at 616-17.

Tech responds that it did not knowingly Section 2000d-7 satisfies the “clear

waive its sovereign immunity by accepting fed- statement” rule by conditioning receipt of

eral funds from 1998 to 2000, because it rea- federal funds on a state’s waiver of sovereign

sonably believed that Congress already had ab- immunity. In Pederson v. La. State Univ., 213

rogated its immunity with § 2000d-7. We F.3d 858, 876 (5th Cir. 2000), we held that

adopted this very argument in Pace, holding § 2000d-7 “clearly, unambiguously, and un-

that the state could not knowingly waive its equivocally conditions receipt of federal funds

immunity under § 2000d-7 by accepting funds under Title IX on the State’s waiver of

from 1996 to 1998. Pace, 325 F.3d at 617.6 [sovereign] immunity.” In Pace, 325 F.3d at

Accordingly, Tech did not knowingly waive its 615, “we extend[ed] that portion of the

immunity.7 Pederson holding to § 504 of the

Rehabilitation Act as well.” Thus, although

“In dicta, the Supreme Court has stated that § 2000d-7 does not validly abrogate state sov-

ereign immunity, it “may also be viewed as a

conditional waiver provision enacted pursuant

5

See Bd. of Trs. of Univ. of Ala. v. Garrett, to Congress’s spending power.” Id.

531 U.S. 356 (2001); Kimel v. Fla. Bd. of Re-

gents, 528 U.S. 62 (2000); Fla. Prepaid Postsec- “That § 2000d-7 authorizes a conditional

ondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 waiver does not, however, equate with [a

U.S. 627 (1999); City of Boerne v. Flores, 521 state’s] having waived its sovereign immunity

U.S. 507 (1997). by accepting federal funds under the

6 Rehabilitation Act.” Id.. Of course, the two

See also Johnson, 2003 U.S. App. LEXIS

8482, at *4 (following Pace). inquiries overlap in most cases. If a federal

statute unambiguously conditions receipt of

7

We therefore do not address Tech’s alternative federal funds on a waiver of sovereign

argument that it lacked state-law authority to waive immunity, then the courts usually may infer

its sovereign immunity.

3

that the state knowingly and voluntarily baugh, issued months before King Miller in-

waived its immunity by accepting the funds. formed Tech of her disability, this court held

Indeed, the main purpose of the clear that the Americans with Disabilities Act, 42

statement rule is to ensure that states U.S.C. § 12202, validly abrogates state

understand the bargain: Accept federal funds sovereign immunity. Coolbaugh implicated

and thereby waive sovereign immunity. the validity of not only § 12202, but also

§ 2000d-7: “Because Title II of the ADA and

As with Pace, though, this case is not like § 504 of the Rehabilitation Act offer virtually

most cases. “An effective waiver of a state’s identical protections, the abrogation analysis

sovereign immunity is the ‘intentional with regard to the two statutes i s the same.”

relinquishment or abandonment of a known Pace, 325 F.3d at 616 n.11 (collecting cases).

right or privilege.’” Id. at 616 (quoting Coll.

Sav. Bank, 527 U.S. at 682 (emphasis added)). We must “‘indulge every reasonable

From 1998 to 2000, Tech could not have presumption against waiver’ of fundamental

known that it retained any sovereign immunity constitutional rights,” including state sovereign

to waive. This is so because § 2000d-7, aside immunity. Coll. Sav. Bank, 527 U.S. at 682

from being an unambiguous conditional-waiver (quoting Aetna Ins. Co. v. Kennedy ex rel.

statute, is also an “unequivocal statement[ ] of Bogash, 301 U.S. 389, 393 (1937)). Given

intent to abrogate.” Reickenbacker, 274 F.3d this court’s error (since overruled) in Cool-

at 977. At the time, Tech “had little reason to baugh, we cannot reasonably presume that

doubt the validity of Congress’s asserted abro- Tech anticipated Reickenbacker and knew that

gation of state sovereign immunity under it retained sovereign immunity that it would

§ 504.” Pace, 325 F.3d at 616. waive by accepting federal funds. Pace, 325

F.3d at 616-17. The far more reasonable pre-

Like the defendants in Pace, id. at 616-17, sumption is that “[b]elieving that [§ 2000d-7]

Tech accepted federal funds after Seminole validly abrogated [its] sovereign immunity,

Tribe v. Florida, 517 U.S. 44 (1996) (holding [Tech] did not and could not know that [it]

that Congress may abrogate state sovereign retained any sovereign immunity to waive by

immunity only with its section 5 powers), and accepting conditioned federal funds.” Id.

City of Boerne v. Flores, 521 U.S. 507 (1997) at 616.8

(explaining and limiting Congress’s section 5

powers). Perhaps Tech should have had the

8

considerable foresight to understand by late As in Pace, we need not decide whether Tech

1997 how Seminole Tribe and City of Boerne could knowingly waive its sovereign immunity un-

combined to limit sharply Congress’s power to der § 2000d-7 after the Supreme Court’s decision

abrogate the states’ sovereign immunity under in Garrett or our decision in Reickenbacker. See

Pace, 325 F.3d at 616 n.10, 618 n.15. In Garrett,

section 5. See supra note 4.

531 U.S. at 360, the Court held that § 12202 did

not validly abrogate state sovereign immunity for

Unfortunately, this court’s decision in claims under title I of the ADA. Garrett obviously

Coolbaugh v. Louisiana, 136 F.3d 430 (5th undermined the rationale of Coolbaugh, 136 F.3d

Cir. 1998), overruled by Reickenbacker, 274 at 437-38, which did not distinguish between titles

F.3d at 981, quickly obscured any such I and II. Indeed, Reickenbacker, 274 F.3d at 981,

foresight. Pace, 325 F.3d at 616-17. In Cool- overruled Coolbaugh based on Garrett. Whether

(continued...)

4

What looks like a hard but plain choice in

retrospectSSaccept funds and thereby waive

sovereign immunitySSat the time was in fact an

easy and carefree choice for TechSSaccept

funds without consequence, because

§ 2000d-7 appeared already to have abrogated

Tech’s immunity. Tech’s “actions were

voluntary, but [it] did not manifest a knowing

waiver of that which [it] could not know [it]

had the power to waive.” Id. at 616-17. To

hold otherwise and impute to Tech a degree of

omniscience would undermine the “central

purpose” of the doctrine of state sovereign im-

munity: “to ‘accord the States the respect

owed them as’ joint sovereigns.” S.C. State

Ports Auth., 535 U.S. at 765 (quoting Puerto

Rico Aqueduct & Sewer Auth., 506 U.S.

at 146).9

The order of the district court is

REVERSED, and this matter is REMANDED

with instruction to dismiss King Miller’s § 504

claim against Tech.

(...continued)

Garrett or Reickenbacker reasonably placed Tech

on notice that it retained immunity to waive under

§ 2000d-7 is immaterial to this case, because King

Miller filed this suit before either Garrett issued in

February 2001 or Reickenbacker issued in De-

cember 2001.

9

As with Pace, 325 F.3d at 618 n.15, our

decision today represents something of a Pyrrhic

victory for Tech, because it now knows that it has

sovereign immunity to waive by accepting federal

funds. The rationale of Pace, in other words, ap-

plies to a limited number of historical cases as a

result of fast-developing sovereign-immunity jur-

isprudence at the Supreme Court and this court.

5