Brennan v. Stewart

• Decision Date: 07 January 1988
• Docket Number: No. 86-2972,86-2972
• Citation: 834 F.2d 1248
• Parties: Tom BRENNAN, Plaintiff-Appellant, v. Wanda F. STEWART, Individually and as Executive Director of the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1248

834 F.2d 1248

Tom BRENNAN, Plaintiff-Appellant, v. Wanda F. STEWART, Individually and as Executive Director of the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids, et al Defendants- Appellees.

No. 86-2972.

United States Court of Appeals Fifth Circuit.

Jan. 7, 1988.

Carol Marion, Larry R. Daves, Tyler, Tex., for plaintiff-appellant.

George Warner, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

Appeals from the United States District Court for the Eastern District of Texas.

Before WRIGHT, ^* GEE, and JOLLY, Circuit Judges.

GEE, Circuit Judge:

Appellant Tom Brennan, his application for a temporary training permit rejected by the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids because of a visual handicap, sued the members of the Board in federal court, alleging that their actions violated his constitutional and statutory rights and requesting damages and other relief. The district court dismissed his claims as barred by the Eleventh Amendment and the qualified immunity of the members of the Board. We reject Mr. Brennan's constitutional claims, but remand certain of his statutory claims for further proceedings.

A. Facts and Prior Proceedings

The State of Texas regulates the hearing aid business through the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids. See Tex.Rev.Civ.Stat.Ann. art. 4566-1.01 et seq. (Vernon 1987). The Board is authorized to create and administer a licensing examination to persons "desiring to engage in fitting and dispensing hearing aids in the State of Texas." Art. 4566-1.06. The Board issues "temporary training permits" to persons who meet certain requirements, including the requirements for taking the licensing exam. ¹ By regulation, the Board requires each applicant to complete a specified training regimen under a temporary permit or to have equal amounts of supervised practical experience before taking the licensing exam. See 22 Tex.Admin.Code Sec. 141.36(b) (minimum practical experience of 150 hours of training before examination); Sec. 141.35(b) (temporary training regime includes 150 hours of practical training). Holders of temporary permits must complete 15 hours of "ear mold impressions and otoscopic examinations of the ear." Sec. 141.35(b)(1)(E).

When he applied to the Board for a temporary training permit, Tom Brennan was a graduate of Stephen F. Austin University with a bachelor of science degree in psychology and social and rehabilitation services; he was enrolled in (and has since completed) a masters program in speech and language from the same university; and he was employed at the Nachogdoches Hearing, Speech, and Language Center as an aid. Mr. Brennan is totally blind.

The Board denied Mr. Brennan's application. According to a letter from Executive Director Wanda Stewart to his putative training supervisor: ²

The decision of the Board was based on the fact that Mr. Brennan's visual disability will prevent him from complying with Rule and Regulation 141.35(E) [sic; 22 Tex.Admin.Code Sec. 141.35(b)(1)(E) ] which requires fifteen hours of ear impressions and otoscopic examinations. The rule requires that the fifteen hours be physically performed by the trainee himself. The Board cannot make exceptions to the rule and this decision is final.

Despite this apparently unqualified rejection, Ms. Stewart went on in the same letter to give the time and location of the next Board meeting and to assert that "Mr. Brennan is welcome to appear before the Board at this meeting if he so desires." Mr. Brennan did not respond; instead, after delaying about six months, he wrote to a Texas Assistant Attorney General requesting reconsideration of the Board's decision. Although the Assistant Attorney General's response did not satisfy him, he sought no judicial review under state administrative law.

Mr. Brennan then filed this federal action against the Board members in their official and individual capacities. He alleged that the Board's denial of the training permit on the basis of his visual handicap violated his right to equal protection and due process of law under the Fourteenth Amendment and 42 U.S.C. Sec. 1983, violated his rights under Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, and Sec. 122(a) of the Fiscal Assistance to State and Local Governments Act, 31 U.S.C. Sec. 6716(b)(2), and violated Texas anti-discrimination laws. He prayed for declaratory relief, temporary and permanent injunctions, and damages.

The district court held that the suit against the Board members in their official capacities was against the Board itself, and that the Board was an arm of the State of Texas. It therefore dismissed Mr. Brennan's Sec. 1983/Fourteenth Amendment and Sec. 504 claims against the Board members in their official capacities as barred by the Eleventh Amendment. In addition, the court dismissed Mr. Brennan's state-law claims as barred by the Eleventh Amendment and Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); and the court dismissed his claim under 31 U.S.C. Sec. 6716(b)(2) for failure to exhaust administrative remedies. The court granted Mr. Brennan leave to amend his complaint to allege with the particularity required by Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), violations of his rights under the Fourteenth Amendment and Sec. 504 by the defendants in their individual capacities. After reviewing the amended complaint, the district court held that the individual defendants had not violated Mr. Brennan's federal rights, and that even if they had, they were entitled to qualified immunity because they had not violated any clearly established rights. Mr. Brennan appeals only the district court's dismissal of his Fourteenth Amendment and Sec. 504 claims.

B. Through a Glass Darkly: Mysteries of the Eleventh Amendment

The district court held that Mr. Brennan's due process and equal protection claims and his claim under Sec. 504 of the Rehabilitation Act brought under Sec. 1983 against the members of the Board in their official capacities were barred by the Eleventh Amendment. Read literally, the Eleventh Amendment shields the states from suits by non-citizens only, ³ but the Supreme Court has construed it in light of a broader notion of sovereign immunity implicit in the constitutional scheme. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also Welch v. Dept. of Highways & Public Transportation, --- U.S. ----, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (plurality opinion). Although Congress can abrogate the Eleventh Amendment by statute under the authority of Sec. 5 of the Fourteenth Amendment, ⁴ Sec. 1983 itself does not abrogate the states' immunity from suit in federal court. Edelman v. Jordan, 415 U.S. 651, 675-76, 94 S.Ct. 1347, 1361-62, 39 L.Ed.2d 662 (1979). Mr. Brennan does not dispute that his official capacity claims were in fact against the Board itself, nor does he argue that the Board is not an arm of the state. He now concedes that his claim for damages is barred by the Eleventh Amendment. Even so, he argues that the district court erred by refusing to apply the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to reach the merits of his claims against the Board for declaratory and injunctive relief.

Mr. Brennan is correct. The district court should have entertained his claims for equitable relief on the merits. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) ("[I]mplementations of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State. See Ex parte Young."); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984) (Ex parte Young fiction applies only to violations of federal law by state officials); Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979) (Eleventh Amendment bars all but prospective relief and costs ancillary to prospective relief under Ex parte Young ); see also Darlak v. Bobear, 814 F.2d 1055, 1060-61 (5th Cir.1987); Clay v. Texas Women's University, 728 F.2d 714, 715-16 (5th Cir.1984).

The Ex parte Young fiction is that acts by state officials which are contrary to federal law cannot have been authorized or be ratified by the state; thus, illegal acts by state officials cannot be considered acts done under the state's authority. Therefore, any suit seeking to enjoin wrongful--and ipso facto unauthorized--acts by state officials is not a suit against the state; and the federal court's injunction of those wrongful acts is not a judgment against the state itself. The "fiction" of Ex parte Young is its underlying image of the state as a discrete entity separate from its agents, ready and willing to obey federal law under the Supremacy Clause but thwarted by the bad acts of its recalcitrant officials; whatever the power of this image, the fiction has long been thought "necessary to preserve the supremacy of federal law." Clark, The Role of National Courts in 200 Years of Evolving Governance, 18 Cum.L.Rev. 95, 107 (1987). Ex parte Young creates "the well-recognized irony that an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment." Pennhurst, 465 U.S. at 105, 104 S.Ct. at 910 (internal quotation omitted). Although the Supreme Court has sometimes implied otherwise, ⁵ Ex parte Young is a gaping hole in the shield of sovereign immunity created by the Eleventh Amendment and the Supreme Court. ⁶

The Eleventh Amendment and the doctrine of Ex parte Young together create a relatively simple rule of state immunity. Basically, prospective injunctive or declaratory relief against a state is permitted--whatever its financial side-effects--but...