Kilcullen v. NYS Dept. Labor

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7208
• Citation: 205 F.3d 77
• Parties: (2nd Cir. 2000) JOSEPH C. KILCULLEN, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF LABOR, Defendant-Appellee, UNITED STATES OF AMERICA, Intervenor
• Court: U.S. Court of Appeals — Second Circuit

Page 77

205 F.3d 77 (2nd Cir. 2000)

JOSEPH C. KILCULLEN, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF LABOR, Defendant-Appellee, UNITED STATES OF AMERICA, Intervenor.

Docket No. 99-7208

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 18, 1999

Decided: February 24, 2000

Appeal from a decision of the United States District Court for the Northern District of New York (Kahn, J.) dismissing the plaintiff's discrimination claim for lack of subject matter jurisdiction on the ground that the Eleventh Amendment divests the federal courts of jurisdiction over claims brought against States under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The Court of Appeals (Leval, J.) holds that Congress validly abrogated the States' sovereign immunity from suit under the ADA and the Rehabilitation Act through a valid exercise of its Fourteenth Amendment enforcement powers.

Vacated and remanded.

JOSEPH HEIN, Altamont, NY, for Plaintiff-Appellant,

ANDREA OSER, Assistant Attorney General, New York State, Albany, NY (Eliot Spitzer, Attorney General, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General on the brief), for Defendant-Appellee SETH M. GALANTER, Department of Justice, Washington, DC (Bill Lann Lee, Acting Assistant Attorney General and Jessica Dunsay Silver on the brief), for Intervenor.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

Leval, Circuit Judge:

Plaintiff appeals from a decision of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge) dismissing for lack of subject matter jurisdiction a lawsuit he had filed against the New York State Department of Labor seeking damages under the ADA, 42 U.S.C. 12101, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a). In reaching its decision, the district court held that States are immune from suits for damages in federal court under both statutes and that Congress lacked the power, pursuant to Section 5 of the Fourteenth Amendment, to abrogate the States' immunity from suit under these laws. Subsequent to that decision, this court held in Muller v. Costello, 187 F.3d 298, 307-11 (2d Cir. 1999), that Congress had successfully abrogated the States' sovereign immunity from suit under the ADA through a valid exercise of its Fourteenth Amendment enforcement powers. Though the Supreme Court has since granted certiorari in an unrelated case addressing the identical question, see Florida Dep't of Corrections v. Dickson, cert. granted, 120 S. Ct. 976 (2000), this circuit will continue to apply Muller pending the high court's resolution of the issue. Because Muller's logic applies with equal force to Section 504 of the Rehabilitation Act, we hold that the immunity of States is abrogated under that Act as well.

BACKGROUND

Plaintiff Joseph Kilcullen suffers from epilepsy and a learning disability. Since 1995, he has actively sought employment with various New York State agencies. In each of his applications for state employment, Kilcullen has been asked to describe any handicaps or medical problems he might have. Between September 1995 and February 1996, he was employed, on probationary status, as a Highway Maintenance Trainee by the New York State Department of Transportation. After he was involved in a series of snow plow accidents, he was discharged from that position.

Kilcullen subsequently filed two lawsuits against New York State, both alleging that he was discriminated against on the basis of his disability. One action, Kilcullen v. New York State Department of Transportation, 96-CV-2023 (N.D.N.Y.), challenged his discharge under the ADA and the New York Human Rights Law (NYHRL), N.Y. Exec. Law 290, et seq. The other, Kilcullen v. New York State Department of Labor, 97-CV-484 (N.D.N.Y.), alleged that the questions regarding disability on the State's employment application forms violated the ADA, the NYHRL, and Section 504 of the Rehabilitation Act.

By opinions dated January 19, 1999, the district court dismissed both actions on the ground that the Eleventh Amendment bars federal courts from considering claims against the States under the provisions in question. See Kilcullen v. New York State Dep't of Trans., 33 F. Supp. 2d 133 (N.D.N.Y. 1999), vacatur noted, 2000 WL 64909 (N.D.N.Y. Jan. 12, 2000); Kilcullen v. New York State Dep't of Labor, 97-CV-484 (N.D.N.Y. Jan. 19, 1999). The plaintiff appealed both decisions. By order dated January 5, 2000, we vacated the district court's decision in the first action-which did not include a claim under the Rehabilitation Act-and remanded the case to the district court. See Kilcullen v. New York State Dep't of Trans., 2000 WL 64909 (N.D.N.Y. Jan. 12, 2000) (noting remand). This is the appeal of the second decision.

DISCUSSION

Kilcullen argues that the district court erred in finding that the Eleventh Amendment bars claims against State agencies under the ADA and Section 504 of the Rehabilitation Act. In light of this court's decision in Muller, 187 F.3d 298, defendant New York State Department of Labor (New York) concedes that Kilcullen's ADA claim must be reinstated and remanded to the district court for disposition on the merits. However, New York argues that, despite the substantial congruence between the ADA and the Rehabilitation Act,¹ differences in the legislative record preclude a finding that Congress has abrogated the States' immunity from suit under Section 504 of the Rehabilitation Act. We reject the defendant's analysis and hold that State agencies are not immune from suit in federal court to enforce the rights guaranteed in Section 504 of the Rehabilitation Act.

Though the text of the Eleventh Amendment does not expressly provide the States immunity from suit in federal court by their own citizens,² the Supreme Court has long interpreted the Constitution to establish such a barrier. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 16-19 (1890). However, this immunity is not absolute, but subject to two important limitations: (1) a State may waive its immunity and consent to be sued in federal court, see, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); Close v. New York, 125 F.3d 31, 36 (2d Cir. 1997), and (2) Congress may abrogate the States' sovereign immunity by passing legislation pursuant to a valid exercise of its power to enforce the rights guaranteed by the Fourteenth Amendment, see, e.g., Seminole Tribe, 517 U.S. at 55; Close, 125 F.3d at 36.

In Seminole Tribe, the Supreme Court set forth a two-part test for determining whether an act of Congress validly abrogates States' sovereign immunity: Congress must (1) "unequivocally express[] its intent to abrogate the immunity," 517 U.S. at 55 (internal quotation marks omitted) and (2) act "pursuant to a constitutional provision granting [it] the power to abrogate," id. at 59. As to the second prong, recent Supreme Court precedent has clarified that Congress may not abrogate State sovereign immunity pursuant to its Article I powers, although it may pursuant to 5 of the Fourteenth Amendment.³ See Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2199, 2205 (1999); see also Muller, 187 F.3d at 308.

New York concedes that the first condition is met. The relevant enactment unequivocally states: "State[s] shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973." 42 U.S.C. 2000d-7(a)(1). Further, the language of this provision is, with one minor difference not relevant to this case, identical to the provision we found to be unequivocal in Muller. See Muller, 187 F.3d at 307.

New York argues, however, that the second Seminole Tribe requirement is not met, as Congress was not acting pursuant to a valid exercise of its 5 enforcement powers when it adopted the Rehabilitation Act. In its initial brief, the State premised its argument on the substance of the Act, insisting that the statute proscribes conduct not prohibited by the Fourteenth Amendment and demands remedies neither proportionate to nor congruent with the Equal Protection Clause's command.⁴ After this court issued its opinion in Muller expressly rejecting these arguments, see Muller, 187 F.3d at 308-11, the defendant altered its tack. New York now argues that Congress's abrogation was invalid because it had not yet developed a sufficient legislative record demonstrating that the the Rehabilitation Act was "appropriate legislation" to enforce the Fourteenth Amendment when it adopted the abrogation provision in 1986.⁵

We reject New York's analysis, and conclude that we are free to consider the ADA's subsequently accumulated legislative record when assessing whether the Rehabilitation Act constitutes appropriate remedial legislation.⁶ For the purposes of determining whether a statute represents a valid exercise of a delegated power, the relevant inquiry is whether Congress "could have" enacted the statute pursuant to the power. E.g., Anderson v. State Univ. of New York, 169 F.3d 117, 120 (2d Cir. 1999), vacated on other grounds, 120 S. Ct. 929 (2000). In making this determination, courts have always been free to consider evidence beyond that which is contained in the legislative record. See, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 200, 209, 211-12 (1997) (while inquiring into constitutionality of a statute, repeatedly considering information submitted after the law was enacted and critiquing as "constitutionally unwarranted" position that Congress is under obligation to develop detailed factual record "to accommodate judicial review"); cf. Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir. 1992) ("The law is plain that the constitutional sufficiency of a state's proffered reasons...