421 F.3d 342 (5th Cir. 2005), 02-10190, Miller v. Texas Tech University Health Sciences Center

Docket Nº:02-10190, 02-30318, 02-30369.
Citation:421 F.3d 342
Party Name:Lucinda G. MILLER, Elaine King-Miller, Plaintiffs-Appellees, v. TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Defendant-Appellant. Theodore Johnson, Plaintiff-Appellee, v. Louisiana Department of Education, et al., Defendants, Louisiana Department of Education; State of Louisiana; President of Louisiana State University System; Board of Regents, De
Case Date:August 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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421 F.3d 342 (5th Cir. 2005)

Lucinda G. MILLER, Elaine King-Miller, Plaintiffs-Appellees,

v.

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Defendant-Appellant.

Theodore Johnson, Plaintiff-Appellee,

v.

Louisiana Department of Education, et al., Defendants,

Louisiana Department of Education; State of Louisiana; President of Louisiana State University System; Board of Regents, Defendants-Appellants.

Lynn August, Plaintiff-Appellee,

v.

Suzanne Mitchell; Mae Nelson; Ed Barras, Department of Social Services, for the State of Louisiana, Defendants-Appellants.

Nos. 02-10190, 02-30318, 02-30369.

United States Court of Appeals, Fifth Circuit.

Aug. 15, 2005

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[Copyrighted Material Omitted]

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Bradley W. Howard (argued), Grant A. Bannen, Brown & Fortunato, Amarillo, TX, for Lucinda G. Miller and Elaine King-Miller.

Amy Warr (argued), Austin, TX, for Texas Tech University Health Science Center.

Sarah Elaine Harrington (argued), Jessica Dunsay Silver, U.S. Dept. of Justice, Civil Rights Div.-Appellate Section, Washington, DC, for U.S.

Kevin J. Curnin, Stroock, Stroock & Lavan, New York City, for American Ass'n of People with Disabilities, American Ass'n of Retired Persons, American Council of the Blind of Texas and American Disability Ass'n, Amici Curiae.

Martin J. Cirkiel, Kelly L. Hinton, Cirkiel & Associates, Round Rock, TX, for Coalition of Texans with Disabilities, Nat. Ass'n of Blind Lawyers, American Ass'n of University Women and Nat. Organization on Disability, Amici Curiae.

Jeremy Stuart Buck (argued), kellogg, Huber, Hansen, Todd & Evans, Washington, DC, for Theodore Johnson.

Richard A. Curry, Michael Brent Hicks (argued), McGlinchey Stafford, Baton Rouge, LA, for Louisiana Dept. of Education, State of Louisiana, President of Louisiana State University System, Board

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of Regents, Suzanne Mitchell, Mae Nelson, Ed Barras and Dept. of Social Services for the State of Louisiana.

John Frederick Stanton, Howrey, Simon, Arnold & White, Washington, DC, for American Ass'n of People with Disabilities, Amicus Curiae.

Roman E. Darmer, II, Howrey, Simon, Arnold & White, Irvine, CA, for American Ass'n of People with Disabilities, ADAPT, Alexander Graham Bell Ass'n for the Deaf and Hard of Hearing, American Ass'n on Mental Retardation, American Council of the Blind, American Occupational Therapy Ass'n, ARC of the United States, Ass'n on Higher Education and Disability, Judge David L. Bazelon Center for Mental health Law, Brain Injury Ass'n of America, Disability Rights Education and Defense Fund, Inc., Epilepsy Foundation, Legal Aid Society Employment Law Center, Nat. Ass'n of Protection & Advocacy Systems, Nat. Ass'n of Rights Protection and Advocacy, Nat. Health Law Program, Nat. Mental Health Consumers Self-Help Clearinghouse, Nat. Spinal Cord Injury Ass'n and Polio Society, Amici Curiae.

Sanford A. Kutner, Metairie, LA, for Lynn August.

Michael Leslie Penn, Baton Rouge, LA, for Suzanne Mitchell, Mae Nelson, Ed Barras and Dept. of Social Services, for the State of Louisiana.

Appeal from the United States District Court For the Northern District of Texas and Eastern District of Louisiana.

ON PETITION FOR REHEARING EN BANC

Before KING, Chief Judge and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.[*]

W. EUGENE DAVIS AND WIENER, Circuit Judges:

This consolidated appeal presents the same issue we recently resolved en banc in Pace v. Bogalusa City School Board: 1 Does a state waive its Eleventh Amendment immunity from suit in federal court under § 504 of the Rehabilitation Act of 1973 2 when it accepts federal funds that are granted by Congress under authority of the Constitution's Spending Clause and expressly conditioned on waiver of immunity from § 504? For reasons that follow, we find no merit in appellants' arguments and reaffirm our conclusions in Pace that acceptance of such federal funds operates to waive a State's Eleventh Amendment immunity under the express conditions of 42 U.S.C. § 2000d-7.3

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I. BACKGROUND

Louisiana's Department of Education ("LADOE") and Department of Social Services ("DSS") 4 and Texas Tech University Health Sciences Center ("TTUHSC") (collectively "defendants") appeal rulings of the district courts, which held that, by accepting federal funds offered on explicit conditions of waiver, defendants in fact waived their right to Eleventh Amendment 5 immunity pursuant to 46 U.S.C. § 2000d-7, 6 and were therefore amenable to suit in federal court for § 504 violations. Later, a panel of this court in Pace v. Bogalusa City School Board 7 ("Pace Id.") held that, despite the express provision in the grant that entitlement of the grantee to accept the funds was conditioned on such a waiver, a State did not waive Eleventh Amendment immunity from suit under § 504 by accepting federal funds at a time when, based on the then-current state of the pertinent case law, the State had reason to believe that it had no such immunity to

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waive. Two panels of this court, relying on Pace I, reversed the district courts' denials of Eleventh Amendment Immunity and dismissed the plaintiffs' claims under § 504. 8

We later reheard Pace en banc and held that, then as now, a State did waive Eleventh Amendment immunity from suit under § 504 by accepting federal funds under such circumstances ("Pace II"). 9 Prior to rehearing Pace en banc, we had agreed to rehear the instant cases en banc, but postponed rehearing them pending our decision in Pace II .

After Pace II was announced, we asked the parties in these cases to submit supplemental briefs explaining which of their arguments regarding Eleventh Amendment immunity from suits under § 504 remained viable and which had been foreclosed. In response, the defendants conceded that Pace II forecloses all their arguments except three.

First, both LADOE and TTUHSC contend that no valid waiver of Eleventh Amendment immunity occurred because, even though they received federal funds, none of the state agencies was expressly authorized by state law to waive its respective state's immunity from suit under § 504. Second, TTUHSC contends that Pace II did not address the issue whether § 504 and § 2000d-7 place conditions on federal funds that are not reasonably related to the purpose of the expenditure, which is part of the test for valid Spending Clause legislation set forth by the Supreme Court in South Dakota v. Dole.10 Third, LADOE asserts that it did not "knowingly waive" Eleventh Amendment immunity under § 2000d-7 by accepting federal funds, contending that this argument, although rejected in Pace II, should be reexamined in light of the Supreme Court's subsequent decision in Jackson v. Birmingham Board of Education.11

II. STATE IMMUNITY UNDER THE ELEVENTH AMENDMENT

A. Express Authority to Waive Immunity

We consider first defendants' argument that they did not waive their states' Eleventh Amendment immunity from suit under § 504 because they lacked express authorization to do so under state law. Defendants do not challenge that they were authorized under state law to accept federal funds or that each received federal funds. 12 Defendants insist, however,

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that as state agencies, their authority to accept federal funds is insufficient to waive Eleventh Amendment immunity, which, they argue, cannot be validly waived without express statutory authority.

Defendants' argument fails to recognize that grant programs based on the Spending Clause are to be interpreted under ordinary contractual principles. 13 In these cases, the defendants were authorized by the State to accept the benefits of substantial sums of federal Spending Clause money burdened with the clearly stated condition under § 2000d-7 that acceptance waives immunity from suit in federal court. The statutory powers of attorney provided to defendants by their respective state legislatures to accept, administer, and expend such federal funds necessarily includes the authorization to accept the conditions that come along with those funds. Clothed with this authority, the defendants held themselves out to have authority from their states to comply with the conditions imposed by Congress in the statute. These conditions are inseparable from the offer of the funds: The States (or their authorized agencies) may reject the condition of waiver of Eleventh Amendment immunity by rejecting the funds, or they may accept the funds and the conditions; they cannot, however, accept the benefits of the funds and reject the inextricably intertwined condition of waiver by claiming post hoc that the delegation of authority to accept the funds did not carry with it the authority to waive immunity. This is hornbook contract and agency law.

Therefore, we reject defendants' argument that they retain Eleventh Amendment immunity because they lacked express statutory authority to waive their states' Eleventh Amendment immunity. 14

B. Relatedness

We next address TTUHSC's argument that § 504 and § 2000d-7 are unconstitutional Spending Clause legislation because they place conditions on federal grants that are not reasonably related to the purpose of the expenditure. This is often referred to as the "relatedness" prong of...

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