Babcock v. Michigan

• Citation: 812 F.3d 531
• Decision Date: 05 February 2016
• Docket Number: No. 14–1816.,14–1816.
• Parties: Jill BABCOCK, Plaintiff–Appellant, v. State of MICHIGAN; Michigan Strategic Fund, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

812 F.3d 531

Jill BABCOCK, Plaintiff–Appellant,

v.State of MICHIGAN; Michigan Strategic Fund, Defendants–Appellees.

No. 14–1816.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 6, 2015.

Decided and Filed: Feb. 5, 2016.

ARGUED:Ali W. Charara, The Sam Bernstein Law Firm, PLLC, Farmington Hills, Michigan, for Appellant. Gary L. Grant, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF:Ali W. Charara, The Sam Bernstein Law Firm, PLLC, Farmington Hills, Michigan, for Appellant. Gary L. Grant, Christina M. Grossi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.

Before: KEITH, ROGERS, and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court in which KEITH, J., joined, and ROGERS, J., joined in part. ROGERS, J. (pp. 15–19), delivered a separate opinion concurring in the result.

OPINION

GRIFFIN, Circuit Judge.

Cadillac Place (formerly the General Motors Building) is an office complex in Detroit that is home to various state offices, a Michigan court of appeals, a restaurant, a gift store, and even a barber shop. The building is owned by defendant Michigan Strategic Fund, a public entity, and leased by defendant State of Michigan. Plaintiff Jill Babcock is an attorney who worked in Cadillac Place. She alleges that various design features of Cadillac Place denied her equal access to her place of employment in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. We affirm the district court's dismissal of plaintiff's claims because she has not identified a service, program, or activity of a public entity from which she was excluded or denied a benefit.

I.

Babcock worked at the Michigan Economic Development Corporation's office in Cadillac Place. She is disabled due to Friedreich's Ataxia

, a degenerative neuromuscular disorder that impairs her ability to walk. Her complaint states that she "wishes to exercise her right of access to her place of employment without fear of injury, embarrassment, and unnecessary frustration." She identifies several design features that she alleges deny her "equal access to Cadillac Place," such as the slope of ramps at building entrances and the lack of handrails at entrances.¹ She seeks injunctive and declaratory relief.

Observing that Babcock had not identified a public service, program, or activity from which she was excluded or denied a benefit, the district court granted defendants' motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim. First, it held that Babcock's ADA claim was barred by Eleventh Amendment sovereign immunity, and second, it ruled that Babcock had failed to allege a violation of the Rehabilitation Act. The district court also denied as futile Babcock's oral motion for leave to amend her complaint to add individual defendants acting in their official capacities. Babcock appeals.

II.

First, we must determine whether Babcock's ADA claim is barred by Eleventh Amendment sovereign immunity. As part of this analysis, we consider whether Babcock has identified conduct that violates the ADA. We conclude that she has not because she has failed to identify any "services, programs, or activities" of a public entity from which she was excluded or denied a benefit. Similarly, with respect to the Rehabilitation Act, we ask whether Babcock has identified a "program or activity" from which she was excluded or denied a benefit. Again, we conclude that she has not.

A.

Whether Eleventh Amendment sovereign immunity exists in a given case is a question of constitutional law that we review de novo. Ernst v. Rising, 427 F.3d 351, 359 (6th Cir.2005) (en banc). The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Although by its terms the Amendment applies only to suits against a state by citizens of another state, the Supreme Court has extended it to suits by citizens against their own states. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Id.²

Congress may abrogate the states' Eleventh Amendment sovereign immunity pursuant to the enforcement provisions of § 5 of the Fourteenth Amendment when Congress both "unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’ " Id. (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ).³ In other words, the ADA only applies to the states to the extent that the statute is enacted pursuant to a valid grant of Congress's authority.

Congress has expressed an unequivocal desire to abrogate Eleventh Amendment immunity for violations of the ADA. 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter."); see Carten v. Kent State Univ., 282 F.3d 391, 394 (6th Cir.2002). But the Supreme Court has held that Congress's attempted abrogation is only valid in limited circumstances, depending upon the nature of the ADA claim. See Garrett, 531 U.S. at 374, 121 S.Ct. 955 (Title I claim barred where there was no pattern of discrimination by the states and the remedy imposed by Congress was not congruent and proportional to the targeted violation); Tennessee v. Lane, 541 U.S. 509, 533–34, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (Title II claim alleging denial of "the fundamental right of access to the courts" not barred); United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (Title II claim not barred to the extent that the ADA-violating conduct also violates the Fourteenth Amendment). Our court has also clarified that an alleged violation of the Equal Protection Clause based on heightened scrutiny as a member of a suspect class, as opposed to an alleged Due Process Clause violation, cannot serve as a basis for Title II liability. See Popovich v. Cuyahoga Cty. Court of Common Pleas, Domestic Relations Div., 276 F.3d 808, 812 (6th Cir.2002) (en banc); Mingus v. Butler, 591 F.3d 474, 483 (6th Cir.2010) (distinguishing between equal protection claims based on heightened scrutiny as a member of a suspect class and challenges under rational basis review for purposes of sovereign immunity).

To guide the lower courts in assessing whether the Eleventh Amendment proscribes an ADA Title II claim, the Supreme Court has set forth a three-part test:

[D]etermine ... 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.

Georgia, 546 U.S. at 159, 126 S.Ct. 877 ; see Mingus, 591 F.3d at 482.

The first step in the Eleventh Amendment analysis is to determine which aspects, if any, of defendants' alleged conduct violated Title II. ADA Title II provides 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. Defendants maintain that no conduct violated Title II because Babcock's complaint fails to name a public service, program, or activity from which she was excluded or denied benefits. Babcock responds that her exclusion from equal access to Cadillac Place is sufficient to violate Title II. We interpret her position as arguing that the design features identified in her complaint, such as the slope of ramps and lack of handrails, are services, programs, or activities for purposes of the ADA Title II. But because there is a distinction between access to a specific facility and access to a public service, program, or activity under Title II's private cause of action, Babcock has not identified conduct that violates Title II for purposes of overcoming Eleventh Amendment sovereign immunity.

As an initial matter, a recent decision by the U.S. Supreme Court confirms that the focus of Title II is access to services, programs, and activities. In San Francisco v. Sheehan, the Court confronted the question of whether the ADA governs the manner in which an individual with a disability is arrested. ––– U.S. ––––, 135 S.Ct. 1765, 1773, 191 L.Ed.2d 856 (2015). "The relevant provision provides that a public entity may not ‘exclude’ a qualified individual with a disability from ‘participating in’ and may not ‘deny’ that individual the ‘benefits of, the services, programs, or activities of a public entity.’ " Id. (quoting 42 U.S.C. § 12132 ) (brackets omitted). "This language would apply to an arrest if an arrest is an ‘activity’ in which the arrestee ‘participates' or from which the arrestee may ‘benefit. ’ " Id. (brackets omitted) (emphasis added). Ultimately, the Court assumed, without deciding, that the ADA applies to such arrests. Id. Nonetheless, the Court's approach confirms that Title II's private right of action is specifically intended to remedy interference with a disabled individual's participation in, or benefitting from, a public service, program, or activity. See id.;see also Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.1998) ("[T]he discrimination referenced in the statute must relate to services, programs, or activities[.]").

We thus consider whether the alleged...