Barbour v. Washington Metropolitan Transit Auth.

• Decision Date: 09 July 2004
• Docket Number: No. 03-7044.,03-7044.
• Citation: 374 F.3d 1161
• Parties: Adam BARBOUR, Appellee, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant. United States of America, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1161

374 F.3d 1161

Adam BARBOUR, Appellee, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant United States of America, Intervenor.

No. 03-7044.

United States Court of Appeals, District of Columbia Circuit.

Argued February 10, 2004.

Decided July 9, 2004.

Rehearing En Banc Denied September 1, 2004.

Appeal from the United States District Court for the District of Columbia (No. 00cv00344).

Bruce P. Heppen argued the cause for appellant. With him on the briefs were Cheryl C. Burke, Robert J. Kniaz, and Jay R. Goldman.

Dorene M. Haney argued the cause and filed the brief for appellee.

Sarah E. Harrington, Attorney, U.S. Department of Justice, argued the cause for intervenor. With her on the brief were R. Alexander Acosta, Assistant Attorney General, and Jessica Dunsay Silver, Attorney.

Douglas B. Huron and Richard A. Salzman were on the brief for amicus curiae Metropolitan Washington Employment Lawyers Association in support of appellee.

Before: SENTELLE, GARLAND, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Dissenting opinion filed by Circuit Judge SENTELLE.

GARLAND, Circuit Judge:

The Washington Metropolitan Area Transit Authority (WMATA) contends that sovereign immunity protects it from being sued in federal court under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, for discriminating on the basis of disability. It insists that it did not waive that immunity by accepting federal financial assistance, and further maintains that Congress lacks power under the Spending Clause to condition the receipt of federal funds on such a waiver. We disagree and hold that WMATA has waived its immunity to Rehabilitation Act suits by taking federal transportation funds.

I

WMATA fired Adam Barbour from his position as a probationary electrician on April 1, 1998. Barbour charges that WMATA fired him because he suffers from a mental disability, bipolar disorder. WMATA denies the charge, maintaining that it terminated Barbour for insubordinate, threatening, and anti-social behavior.

On February 24, 2000, Barbour sued WMATA in the United States District Court for the District of Columbia under federal and local causes of action, alleging that the Authority discriminated against him because of his disability. Only one cause of action survived WMATA's motions for dismissal and summary judgment: Barbour's claim that his discharge violated § 504 of the Rehabilitation Act. In permitting that claim to go forward, the district court rejected WMATA's contention that the Eleventh Amendment renders WMATA immune from a Rehabilitation Act suit for money damages in federal court.

WMATA now appeals the district court's denial of immunity, a kind of interlocutory appeal over which this court has jurisdiction. See KiSKA Constr. Corp.-U.S.A. v. WMATA, 167 F.3d 608, 610-11 (D.C.Cir.1999). The United States has intervened on Barbour's side, maintaining that WMATA waived its Eleventh Amendment immunity by accepting federal funds, and that the waiver is constitutionally valid. These issues regarding WMATA's immunity are the only ones that we decide on this appeal. Because the claim of immunity presents a legal question, our review is de novo. See United States v. Microsoft, 253 F.3d 34, 50-51 (D.C.Cir.2001).

II

WMATA, a mass transit system for the District of Columbia and surrounding suburban areas, was created by an interstate compact among Maryland, Virginia, and the District of Columbia, and enjoys the Eleventh Amendment immunity of the two signatory states. Morris v. WMATA, 781 F.2d 218, 219-20 (D.C.Cir.1986); see Hess v. Port Auth. Trans.-Hudson Corp., 513 U.S. 30, 49-50 & n. 20, 115 S.Ct. 394, 405 & n. 20, 130 L.Ed.2d 245 (1994). The Eleventh Amendment to the Constitution provides: "The 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 the Amendment's applicability to suits by citizens against their own states." Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 362, 121 S.Ct. 955, 961, 148 L.Ed.2d 866 (2001).

There are two important exceptions to Eleventh Amendment immunity. First, a state may waive its immunity and consent to suit. Second, Congress may exercise its enforcement power under § 5 of the Fourteenth Amendment to abrogate a state's immunity without its consent. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999) (citing Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883), and Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Whether WMATA waived its immunity is the question at issue here.

The "`test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.'" College Savings, 527 U.S. at 676, 119 S.Ct. at 2226 (quoting Atascadero, 473 U.S. at 241, 105 S.Ct. at 3146-47). The courts will find a waiver if a state makes a "clear declaration" of its intent to submit to federal court jurisdiction. Id. To elicit a clear declaration, Congress "may, in the exercise of its spending power, condition its grants of funds to the States upon their taking certain actions that Congress could not require them to take, and ... acceptance of the funds entails an agreement to the actions." Id. at 686, 119 S.Ct. at 2231. But Congress must exercise its power explicitly: a congressional waiver provision is constitutional only if it manifests "a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity." Atascadero, 473 U.S. at 247, 105 S.Ct. at 3149-50.

WMATA denies that it consented to waive its Eleventh Amendment immunity from suit under the Rehabilitation Act. First, it contends that Congress did not clearly condition acceptance of federal transportation funds on such a waiver. Second, WMATA maintains that, even if Congress did condition financial assistance on a waiver, WMATA did not knowingly accept the money on that basis. We consider these arguments in turn.

A

Section 504 of the Rehabilitation Act of 1973 provides:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. § 794(a). The Act provides remedies for violations of § 504 by "any recipient of Federal assistance." Id. § 794a(2). In Atascadero State Hospital v. Scanlon, the Supreme Court found that the Rehabilitation Act's "general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment," 473 U.S. at 246, 105 S.Ct. at 3149, and "likewise falls short of manifesting a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity," id. at 247, 105 S.Ct. at 3149-50. Accordingly, the Court concluded that the Eleventh Amendment remained effective in proscribing Rehabilitation Act suits against states and state agencies. Id.

In 1986, in response to Atascadero, Congress passed the Civil Rights Remedies Equalization Act (CRREA), which provides in relevant part:

A state 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, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

42 U.S.C. § 2000d-7(a)(1); see Lane v. Pena, 518 U.S. 187, 198, 116 S.Ct. 2092, 2099-100, 135 L.Ed.2d 486 (1996). Every circuit that has considered the question — that is, every circuit other than our own and the Federal Circuit — has held that the language of the CRREA unambiguously conditions a state agency's acceptance of federal funds on its waiver of Eleventh Amendment immunity.¹ Albeit in dictum, the Supreme Court has said so as well. See Lane, 518 U.S. at 200, 116 S.Ct. at 2100 (declaring that in the CRREA, "Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States' Eleventh Amendment immunity") (emphasis added).

Notwithstanding the views of the circuits and of the Supreme Court, WMATA maintains that the CRREA does not make clear that receipt of funds is conditioned on a waiver of immunity. We disagree. The CRREA identifies "recipients of Federal financial assistance" as the only entities whose immunity is vulnerable. Moreover, the CRREA waiver is directly tied to Rehabilitation Act § 504, which likewise applies only to discrimination "under any program or activity receiving Federal financial assistance," including state instrumentalities. 29 U.S.C. § 794(a); see id. § 794(b). The language of the two statutes together is thus undeniably clear about the simple choice offered to states: if they accept federal funds, they will lose their immunity to Rehabilitation Act suits for discriminatory acts; if they decline the money, they remain free of the Act's proscriptions. WMATA could have avoided the Act — and preserved its immunity — by declining to take federal transportation funds. It chose not to. By stepping into the statute's reach, it voluntarily exposed itself to the suits the statute authorizes...