Albert Block, Jr. v. Texas Board of Law Examiners

Case: 19-50286 Document: 00515339200 Page: 1 Date Filed: 03/10/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 19-50286 March 10, 2020

Lyle W. Cayce

ALBERT W. BLOCK, JR., Clerk

Plaintiff - Appellant

v.

TEXAS BOARD OF LAW EXAMINERS,

Defendant - Appellee

Appeals from the United States District Court

for the Western District of Texas

Before DAVIS, SMITH, and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Out-of-state lawyers can be admitted to the State Bar of Texas without

taking the Texas bar exam if, among other things, they have actively practiced

law for at least five of the last seven years. Albert Block, Jr., a licensed

Louisiana lawyer, sued the Texas Board of Law Examiners for its refusal to

waive that requirement to accommodate his disability. Block appeals the

district court’s dismissal of his claims as barred by sovereign immunity.

The district court held “that the accommodation obligation imposed by

Title II” of the Americans with Disabilities Act (“ADA”)—at least “as it relates

to non-fundamental rights”—“exceeds that imposed by the Constitution and is

not a valid abrogation of state sovereign immunity.” But because Block did not

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allege any conduct that violates Title II, we AFFIRM the dismissal of his claims

under the first prong of United States v. Georgia, and do not reach the issue

relied on by the district court. However, because Block’s claims should have

been dismissed without prejudice, we modify the district court’s judgment from

a dismissal with prejudice to a dismissal without prejudice.

I. Background

Albert Block, Jr. practiced law in Louisiana from 1977 until 2004, when

his disability 1 forced him to stop. Over ten years later, Block sought admission

to the State Bar of Texas. Licensed lawyers can be admitted without taking

the Texas bar exam if they (1) have actively practiced law for at least five of

the last seven years (the “active practice requirement”); (2) have a J.D. from

an approved law school; and (3) have not previously failed the Texas bar exam.

Block decided to sit for the bar exam because, he says, he was told there would

be no waiver of the active practice requirement for a disabled applicant.

Block failed the Texas bar exam in July 2015 and again in February

2016. Then, in May 2017, Block applied for admission without examination to

the Texas bar, explaining that his disability prevented him from satisfying the

active practice requirement. Because Block “recently failed the bar exam twice”

and “ha[d] not practiced law since 2004,” the Texas Board of Law Examiners

(“TBLE”) denied his application.

Block sued TBLE, alleging that the active practice requirement—and

TBLE’s refusal to waive it for him—violate the Americans with Disabilities Act

(“ADA”), the Rehabilitation Act, and the Equal Protection Clause. He also

alleged that TBLE retaliated against him for requesting the waiver by filing a

complaint against him for the unauthorized practice of law.

1 Block alleges that he suffers from chronic fatigue, severe osteoarthritis, and a host

of physical conditions and ailments resulting from chemotherapy and radiation treatment for

Stage 4 esophageal cancer.

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TBLE moved to dismiss Block’s complaint under Rules 12(b)(1) and (6).

The district court adopted the magistrate judge’s report and recommendation

and dismissed Block’s claims. Specifically, the court found that (1) Title II of

the ADA does not validly abrogate states’ sovereign immunity “as it relates to

non-fundamental rights”; (2) Block did not plead that TBLE waived its

immunity under the Rehabilitation Act by accepting federal funds; and (3) the

Ex parte Young exception did not apply to Block’s Fourteenth Amendment

claims.

II. Discussion

We review de novo a Rule 12(b)(1) dismissal based on sovereign

immunity, 2 applying the same standard as the district court. “When a Rule

12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court

should consider the Rule 12(b)(1) jurisdictional attack before addressing any

attack on the merits.” 3

A. ADA Title II Claims

Under the Eleventh Amendment, federal courts lack jurisdiction over

suits against nonconsenting states. Congress can abrogate this immunity if it

(1) “makes its intention to abrogate unmistakably clear in the language of the

statute” and (2) “acts pursuant to a valid exercise of its power under § 5 of the

Fourteenth Amendment.” 4 Here, the first prong is easy: Congress expressly

declared that states “shall not be immune” from suit for a violation of the ADA. 5

The second—whether Congress’s purported abrogation was a valid exercise of

its § 5 power—is more complicated.

Section 5 legislation that targets facially constitutional conduct is valid

only if it demonstrates “a congruence and proportionality between the injury

2 Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005).

3 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

4 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003).

5 42 U.S.C. § 12202.

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to be prevented or remedied and the means adopted to that end.” 6 In

Reickenbacker v. Foster, we held that Title II of the ADA, as a whole, fails that

test. 7 But three years later, the Supreme Court held that Title II is congruent

and proportional—and does validly abrogate states’ sovereign immunity—in

“cases implicating the fundamental right of access to the courts.” 8 We did not

decide whether Reickenbacker’s holding remains valid in cases beyond that

specific purview. 9

The Supreme Court changed the Title II abrogation landscape a second

time with United States v. Georgia. 10 Importantly, the Court established a

three-part test for determining whether Title II validly abrogates states’

sovereign immunity. A court must determine, on a “claim-by-claim basis”:

(1) which aspects of the State’s alleged conduct violated Title II; (2)

to what extent such misconduct also violated the Fourteenth

Amendment; and (3) insofar as such misconduct violated Title II

but did not violate the Fourteenth Amendment, whether

Congress’s purported abrogation of sovereign immunity as to that

class of conduct is nevertheless valid. 11

Here, the magistrate judge’s report and recommendation (adopted by the

district court) skipped to Step 3, and held that “the accommodation obligation

imposed by Title II, as it relates to non-fundamental rights” like the right to

practice law involved here, “exceeds that imposed by the Constitution and is

not a valid abrogation of state sovereign immunity.” But under Georgia, we do

6 City of Boerne v. Flores, 521 U.S. 507, 520 (1997).

7 274 F.3d 974, 983 (5th Cir. 2001).

8 Tennessee v. Lane, 541 U.S. 509, 533–34 (2004).

9 See Pace v. Bogalusa City School Board, 403 F.3d 272, 277 n.14 (5th Cir. 2005) (en

banc) (“The continuing validity of Reickenbacker [after Lane] is uncertain.”) (cleaned up).

10 United States v. Georgia, 546 U.S. 151, 159 (2006).

11 Id. Under Georgia, only if a plaintiff has alleged conduct that violates Title II and

does not violate the Fourteenth Amendment should a court determine whether Title II is

valid § 5 legislation as to that class of conduct. If a plaintiff alleges no conduct that violates

Title II, the inquiry ends.

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not reach that question unless and until it is decided that Block has stated a

claim under Title II. 12

i.

To establish a prima facie case of discrimination under the ADA, Block

must show (1) he is a “qualified individual” under the ADA; (2) he was excluded

from participation in, or denied the benefits of, services, programs, or activities

for which TBLE is responsible; and (3) the exclusion was by reason of

disability. 13 Title II requires public entities to make “reasonable modifications

in policies, practices, or procedures” for disabled individuals, unless the entity

can show that a modification would “fundamentally alter the nature” of the

service or program it offers. 14 A public entity’s failure to make a reasonable

modification may satisfy the second and third prongs of the prima facie case. 15

Block bears the burden of showing that he requested a modification and that

it was reasonable. 16

Block alleges that TBLE violated Title II by refusing to waive the active

practice requirement for admission without examination to the State Bar of

12 Our court has stated it was “unclear” whether Georgia’s first step requires a court

to determine whether the plaintiff has actually stated a claim under Title II, or merely to

identify the conduct she alleges in support of her Title II claim. Hale v. King, 642 F.3d 492,

498 (5th Cir. 2011) (per curiam). In practice, though, we have consistently determined

whether the plaintiff stated a claim at this stage—see id. at 503 (declining to reach Georgia’s

second and third steps where plaintiff failed to state a claim)—and so have most other

circuits. See, e.g., Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006) (under Georgia, “we must

first ascertain whether any of the University’s alleged conduct states a claim for a violation

of Title II”); Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013)

(same); Bowers v. NCAA, 475 F.3d 524, 553 (3d Cir. 2007) (same); Babcock v. Michigan, 812

F.3d 531, 535 (6th Cir. 2016) (same); Guttman v. Khalsa, 446 F.3d 1027, 1036 (10th Cir. 2006)

(same).

13 Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004).

14 28 C.F.R. § 35.130(b)(1)(7)(i); Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,

454–55 & nn. 11–12 (5th Cir. 2005).

15 See Windham v. Harris Cty., Texas, 875 F.3d 229, 235 (5th Cir. 2017).

16Reil v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996) (“Reasonable

accommodation is an element of a prima facie case of discrimination under the ADA, and [the

plaintiff] bears the burden of proof of reasonableness.”) (citation omitted).

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Texas. But Title II “does not require States to compromise their essential

eligibility criteria for public programs”—“[i]t requires only reasonable

modifications,” and “only when the individual seeking modification is

otherwise eligible for the service.” 17

TBLE protects the integrity of its bar by requiring applicants to either

pass the Texas bar exam or meet the three requirements for admission without

examination. 18 The active practice requirement ensures that applicants have

both achieved and maintained the skill and knowledge required to practice law

in Texas. Waiving it to admit a lawyer who has neither passed the Texas bar

exam nor practiced law for thirteen years would not inform TBLE of a vital

fact: does Block currently have the necessary knowledge and skill to practice

law? The modification Block seeks is not a reasonable one. 19

Because Block has alleged no conduct that violates Title II, TBLE is

entitled to Eleventh Amendment immunity.

B. ADA Title V Claims

With his Title V retaliation claim, Block alleges that TBLE retaliated

against him for requesting a waiver of the active practice requirement by filing

a complaint against him for the unauthorized practice of law. “Title V itself

does not abrogate a state’s sovereign immunity. Instead, a plaintiff may bring

17 Lane, 541 U.S. at 532 (internal quotation marks omitted).

18 See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977) (“[T]he regulation of

the bar is at the core of the State’s power to protect the public.”); Goldfarb v. Va. State Bar,

421 U.S. 773, 792 (1975) (recognizing that states “have broad power to establish standards

for licensing practitioners and regulating the practice of professions,” and “[t]he interest of

States in regulating lawyers is especially great”).

19 Even assuming it were reasonable, Block’s claim still fails under the first prong. A

“qualified individual” is a person with a disability who, “with or without reasonable

modifications . . . meets the essential eligibility requirements” for participation in the public

entity’s program. 42 U.S.C. § 12131; see also Lane, 541 U.S. at 532 (Title II requires

reasonable modifications only when the person seeking them “is otherwise eligible for the

service”). Recall that admission without examination also requires that an applicant have

not previously failed the Texas bar exam. Block recently failed it twice. Even with his

proposed modification, Block wouldn’t be eligible for admission without examination.

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a retaliation claim against a state entity only to the extent that the underlying

claim of discrimination effectively abrogates sovereign immunity of the

particular state.” 20 Because Block’s underlying Title II claim is barred by

sovereign immunity, so is his Title V retaliation claim.

C. Rehabilitation Act Claims

Block also brings discrimination and retaliation claims under the

Rehabilitation Act. A state entity waives sovereign immunity under § 504 of

the Rehabilitation Act by accepting federal financial assistance. 21 To state a

claim under the Rehabilitation Act, “a plaintiff must allege that the specific

program or activity with which he or she was involved receives or directly

benefits from federal financial assistance.” 22 Because Block did not allege that

TBLE receives federal funds, the district court did not err in dismissing his

Rehabilitation Act claims. 23

D. Fourteenth Amendment Claims

Block next argues the district court erred in holding that the Ex parte

Young exception to Eleventh Amendment immunity does not apply to his

Fourteenth Amendment claims. That exception allows a plaintiff to sue

individual state officials for prospective relief—a legal fiction that skirts

around the Eleventh Amendment. “To fall within the Ex parte Young exception

to sovereign immunity, however, a plaintiff must name individual state

officials as defendants in their official capacities.” 24 Because Block sued only

20 Dottin v. Texas Dep't of Criminal Justice, 627 F. App'x 397, 398 (5th Cir. 2015) (per

curiam).

21 Miller v. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 345 (5th Cir. 2005) (en

banc).

Taylor v. City of Shreveport, 798 F.3d 276, 283 (5th Cir. 2015) (quoting Lightburn

22

v. Cnty. Of El Paso, Tex., 118 F.3d 421, 427 (5th Cir. 1997)).

23 TBLE maintains that it is funded solely by application fees and receives no federal

funds. See TEX. GOV’T CODE §§ 82.033, 82.034.

24 Raj v. Louisiana State Univ., 714 F.3d 322, 328 (5th Cir. 2013).

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TBLE, and no members in their official capacities, Ex parte Young does not

apply. 25

III. CONCLUSION

Because Block has not alleged conduct that violates Title II (the first step

of Georgia), we AFFIRM the dismissal of his ADA claims as barred by

sovereign immunity, and do not decide whether Congress’s purported

abrogation was a valid exercise of its power under § 5 of the Fourteenth

Amendment. We also AFFIRM the district court’s dismissal of Block’s

Rehabilitation Act and Fourteenth Amendment claims as barred by sovereign

immunity. However, because “[c]laims barred by sovereign immunity are

dismissed without prejudice, not with prejudice,” 26 we modify the district

court’s judgment from a dismissal with prejudice to a dismissal without

prejudice.

As modified, we AFFIRM the district court’s judgment.

25 Block further argues that he should have been allowed to amend his complaint—

but he never requested leave from the district court to do so. Instead, he argued the complaint

was sufficient in response to TBLE’s motion to dismiss and in his objection to the magistrate

judge’s report and recommendation. “A party who neglects to ask the district court for leave

to amend cannot expect to receive such dispensation from the court of appeals.” U.S. ex rel.

Willard v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 387 (5th Cir. 2003).

26 United States v. $4,480,466.16 in Funds Seized from Bank of Am. Account Ending

in 2653, 942 F.3d 655, 666 (5th Cir. 2019).

8