Meyers ex rel. Benzing v. Texas

Citation410 F.3d 236
Decision Date19 May 2005
Docket NumberNo. 02-50452.,02-50452.
PartiesMarjorie MEYERS, by Next Friend Edgar C. BENZING, on behalf of herself and all others similarly situated; Helen Elkin, on behalf of herself and all others similarly situated; Ruth H. Davis, on behalf of herself and all others similarly situated; Phillip Greenberg, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. State of TEXAS; Texas Department of Transportation; William G. Burnett, Executive Director of the Texas Department of Transportation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

J. Hampton Skelton, Skelton, Woody & Arnold, Austin, TX, Charles R. Shaddox, Shaddox, Compere, Walraven & Good, San Antonio, TX, Stephen R. Senn (argued), Peterson & Myers, Lakeland, FL, for Plaintiffs-Appellants.

Sarah Elaine Harrington, Jessica Dunsay Silver, U.S. Dept. of Justice, Civ. Rights Div.-App. Section, Washington, DC, for Intervenor.

Lisa Royce Eskow (argued), Weil, Gotshal & Manges, Amy Warr, Austin, TX, for Defendants-Appellees.

James C. Harrington, Texas Civ. Rights Project, Austin, TX, for Amici Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The named plaintiffs1 originally brought this civil rights class action in Texas state court under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., against defendants, the State of Texas, the Texas Department of Transportation, and William Burnett ("defendants" or "Texas"). Texas removed the case to federal district court. The federal district court remanded the case to the Texas district court. Texas filed a motion in the state district court to dismiss on grounds of state sovereign immunity. That motion was denied by the state district court, and Texas appealed the ruling to the state court of appeals. While that appeal was pending, Texas again removed the case to the federal district court and again moved to dismiss on grounds of state sovereign immunity from suit. The district court dismissed plaintiffs' claims seeking retrospective money damages and prospective injunctive relief for lack of subject matter jurisdiction on grounds that Texas enjoyed immunity from suit under the Eleventh Amendment. The plaintiffs appealed. The predominant issue is whether, in light of Lapides v. Bd. of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), Texas waived its state sovereign immunity from suit by individuals when it removed this case from state court to federal district court.

I. Background

Congress enacted the ADA in 1990 to establish a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). The ADA's broad prohibitions of discrimination in public services and accommodations require accessible parking for the sight, mobility and otherwise handicapped. Texas responded to this requirement by providing persons with disabilities two means to obtain the right to use accessible parking spaces: special license plates and parking placards. TEX. TRANSP. CODE ANN. §§ 502.253, 681.002. The special license plates cost no more than regular license plates. Id. § 502.253(d). The portable placards, which afford parking access to disabled persons without specialized license plates, cost five dollars, however, and must be renewed every four years. Id. §§ 681.003, 681.004. The five dollar fee is used to defray the costs of providing the placards. Id. § 681.005(1).

Plaintiffs filed this class action suit on August 11, 1997, in the state district court for Travis County, Texas alleging that the fee collected to pay for the placard program violates regulations promulgated under Title II of the ADA as well as the ADA. ADA § 12132 states that "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. Pursuant to congressionally granted power to promulgate regulations implementing this section, id. § 12134(a), the Attorney General formulated a "surcharge regulation":

A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with nondiscriminatory treatment required by the Act or this part.

28 C.F.R. § 35.130(f). Plaintiffs alleged that by collecting a fee to pay for the placard program, Texas violated both the ADA and the surcharge regulation.

In September 1997, Texas removed the case to the federal district court for the Western District of Texas, which remanded the case sua sponte on the grounds that the Tax Injunction Act barred federal jurisdiction over plaintiffs' suit. The Texas state district court granted plaintiffs' motion for class certification and denied Texas's motion to dismiss because of the state's sovereign immunity. Texas appealed from that ruling to the Texas state court of appeals. While that appeal was pending, we decided in a separate case, Neinast v. State of Texas, 217 F.3d 275 (5th Cir.2000), that the placard charges were fees, not taxes, and that "the district court erred in holding that the placard funds were a tax and thus within the scope of the Tax Injunction Act." Id. at 279.

Upon learning of our Neinast ruling, Texas removed this case from the Texas court of appeals to federal district court on July 17, 2000. Two days later, Texas moved to dismiss plaintiffs' claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds of Texas's Eleventh Amendment immunity. The district court granted the motion to dismiss, holding, inter alia, that because there was "no clear guidance from the [Supreme] Court on whether removal alone constitutes waiver of Eleventh Amendment immunity," "under [then] current Eleventh Amendment jurisprudence" the state "could avail itself of federal court jurisdiction, and then seek a dismissal on Eleventh Amendment grounds." Dist. Ct. Op. of April 16, 2001 at 6. Plaintiffs timely appealed.

II. Analysis

We review de novo a district court's grant of a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because of state sovereign immunity. United States v. Texas Tech University, 171 F.3d 279, 288 (5th Cir.1999).

A. Waiver of State Sovereign Immunity From Private Suit

State sovereign immunity is a fundamental aspect of the sovereignty that the states enjoyed before the ratification of the Constitution and the Eleventh Amendment, and it was preserved intact by the Constitution. Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The presupposition or concept of state sovereign immunity "has two parts: first, that each State is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 634, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999)(quoting Hans v. Louisiana 134 U.S. 1, 13, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). The term "state sovereign immunity" is used imprecisely by the courts to refer to both parts, i.e., the immunity from suit, and the entity itself, including all of its powers, rights and privileges. See Alden, 527 U.S. at 712-13, 119 S.Ct. 2240. Because the Eleventh Amendment recognizes a State's sovereign immunity from suits brought by individuals in federal court, the Supreme Court has often referred to this as "Eleventh Amendment immunity."2 Id. "Eleventh Amendment immunity" is a misnomer, however, because that immunity is really an aspect of the Supreme Court's concept of state sovereign immunity and is neither derived from nor limited by the Eleventh Amendment. Id. Nevertheless, the term "Eleventh Amendment immunity" has been used loosely and interchangeably with "state sovereign immunity" to refer to a state's immunity from suit without its consent in federal courts. See, e.g., College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999)(using both terms), Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)(same). The concept of state sovereign immunity in all of its aspects has been developed by the Supreme Court through its authoritative interpretations of the Constitution based on history, constitutional structure, and jurisprudence. Alden, 527 U.S. at 712-13, 119 S.Ct. 2240.

A state's immunity from suit is not absolute. College Savings, 527 U.S. at 670, 119 S.Ct. 2219. The Supreme Court has recognized only two circumstances in which an individual may sue a State. "First, Congress may abrogate the states' immunity by authorizing such a suit in the exercise of its power to enforce the Fourteenth Amendment—an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance." Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). "Second, a State may at its pleasure waive its sovereign immunity by consenting to suit." Id. (citing Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883)). But the decision to waive that immunity must be voluntary on the part of the sovereign. Generally, the Court will find a waiver either if (1) the state voluntarily invokes federal court jurisdiction, or (2) the state makes a "clear declaration" that it intends to submit itself to federal court jurisdiction. See College Savings 527 U.S. at 675-676, 119 S.Ct. 2219 (citing Gunter...

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