Brown v. North Carolina Div. of Motor Vehicles

• Decision Date: 12 February 1999
• Docket Number: No. 97-2784,97-2784
• Citation: 1999 WL 66089,166 F.3d 698
• Parties: 8 A.D. Cases 1829, 14 NDLR P 180 Willie M. BROWN; David S. Bagley; Joan Bagley; Orris Cross; Russell Anderson, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, United States of America, Intervenor, v. NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 698

166 F.3d 698

8 A.D. Cases 1829, 14 NDLR P 180

Willie M. BROWN; David S. Bagley; Joan Bagley; Orris Cross; Russell Anderson, on behalf of themselves and all others similarly situated Plaintiffs-Appellants United States of America, Intervenor, v. NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Defendant-Appellee.

No. 97-2784.

United States Court of Appeals Fourth Circuit.

Argued Oct. 26, 1998.

Decided Feb. 12, 1999.

ARGUED: Seth Michael Galanter, United States Department of Justice, Washington, D.C., for Intervenor. Stephen Russell Senn, Peterson & Meyers, P.A., Lakeland, Florida, for Appellants. James Peeler Smith, Special Deputy Attorney General Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.

North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Bill Lann Lee, Acting Assistant Attorney General, Jessica Dunsay Silver, United States Department of Justice, Washington, D.C., for Intervenor. J. Davis Connor, Peterson & Meyers, P.A., Lakeland, Florida; Robert Joseph Antonello, Robert G. Fegers, Antonello & Fegers, Winter Haven, Florida; Melinda Lawrence, Burton Craige, Leto Copeley, Patterson, Harkavy & Lawrence, L.L.P., Raleigh, North Carolina, for Appellants. Michael F. Easley, North Carolina Attorney General, Hal F. Askins, Special Deputy Attorney General, C. Norman Young, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judge MOON joined. Judge MURNAGHAN wrote a dissenting opinion.

OPINION

WILKINSON, Chief Judge:

Five purchasers of North Carolina handicapped parking placards sued the state Division of Motor Vehicles (DMV) on behalf of themselves and all those similarly situated to recover a five dollar fee the state charged for the placard. Plaintiffs claimed the fee violated 28 C.F.R. § 35.130(f), promulgated under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12134. That regulation prohibits public entities from charging a fee to cover the costs of accessibility programs designed to assist the disabled.

The district court found that in passing the ADA, Congress exceeded its powers under Section 5 of the Fourteenth Amendment, and thus Congress could not abrogate sovereign immunity under the test set forth in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Because we find that under City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), 28 C.F.R. § 35.130(f) exceeds Congress' Section 5 powers, we affirm the district court's dismissal of this suit for want of subject matter jurisdiction.

I.

Since 1972 the state of North Carolina has provided a system of handicapped parking for its disabled citizens. See An Act to Provide Special Parking Privileges for Disabled Persons, ch. 374, 1971 N.C. Sess. Laws 305. The state has continuously maintained and updated that system in the ensuing decades. See, e.g., An Act to Clarify the Law Pertaining to Parking Privileges for the Handicapped, ch. 632, 1979 N.C. Sess. Laws 662; An Act to Provide for the Enforceable Designation of Handicapped Parking Signs, ch. 843, 1987 N.C. Sess. Laws 2031. The current system allows persons with mobility impairments to obtain special license plates and removable windshield placards. N.C. Gen.Stat. § 20-37.6(b) & (c). These plates and placards permit the holder to park in any parking space reserved for handicapped persons. Id. § 20-37.6(a). To receive a placard, an applicant must provide medical certification of mobility impairment. Id. § 20-37.6(c1). The placard is valid for five years and is renewable. Id.

North Carolina law further provides that the DMV "may charge a fee sufficient to pay the actual cost of issuance, but in no event less than five dollars ($5.00) per placard." Id. § 20-37.6(c). In accordance with this provision, the DMV charges five dollars for the placard--a fee equal to one dollar a year--to recover the costs of administering the program. From 1990 to 1996, the DMV issued some 573,450 parking placards to assist its citizens with disabilities.

Nearly twenty years after North Carolina began providing for handicapped parking, Congress passed the Americans with Disabilities Act, Pub.L. No. 101-336, 104 Stat. 327 (1990). Title II of the ADA requires that no disabled person, "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. Title II delegates authority to the Attorney General to promulgate implementing regulations within one year after the ADA's effective date. Id. § 12134. Pursuant to that grant, the Department of Justice promulgated rules requiring the creation of handicapped accessible parking spaces. 28 C.F.R. §§ 35.150-.151; id. pt. 36, app. A; see also id. § 36.304. The Department's regulations further require that

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 the nondiscriminatory treatment required by the Act or this part.

Id. § 35.130(f).

Appellants are persons with disabilities who paid a five dollar fee to the DMV to receive a placard. On August 7, 1996, they filed suit in the Eastern District of North Carolina challenging, on behalf of themselves and all others similarly situated, the legality of the fee under 28 C.F.R. § 35.130(f). Appellants sought a declaration that the fee was unlawful and an injunction against its continued imposition. They also requested the repayment with interest of all fees illegally charged. The DMV interposed Eleventh Amendment sovereign immunity. In response, appellants argued that Congress, acting pursuant to Section 5 of the Fourteenth Amendment, abrogated that immunity when it passed the ADA. Neither party argued that the regulation was ultra vires.

The district court held that the Eleventh Amendment barred this suit. Brown v. North Carolina Div. of Motor Vehicles, 987 F.Supp. 451 (E.D.N.C.1997). The court found that Congress clearly intended to abrogate state sovereign immunity. Id. at 454-55. Nevertheless, the court held that Congress could not do so because Title II of the ADA exceeded its remedial power under Section 5 of the Fourteenth Amendment. First, the court held that the ADA impermissibly mandated that disabled individuals were entitled to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Id. at 457-458. Second, the district court stated that the ADA was not remedial legislation at all, but instead created an entitlement for the especial advantage of disabled citizens. Id. at 458-59. Finding that Congress therefore failed to properly abrogate Eleventh Amendment immunity, the district court dismissed the suit for lack of subject matter jurisdiction. The placard holders appeal, and the United States has intervened.

II.

A.

The Eleventh Amendment provides that "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." Although the text of the Amendment seems to restrict only the scope of diversity jurisdiction in federal court, the Amendment has long been interpreted to contain much broader limitations. In Hans v. Louisiana, the Supreme Court recognized that the "suability of a State without its consent" was "not contemplated by the Constitution when establishing the judicial power of the United States." 134 U.S. 1, 15, 16, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Since that time, the Court has reaffirmed this important principle of federalism embodied in the Eleventh Amendment. See Seminole Tribe, 517 U.S. at 54 n. 7, 116 S.Ct. 1114 (listing cases); Booth v. Maryland, 112 F.3d 139, 141-42 (4th Cir.1997) (reviewing the case law). State sovereign immunity includes the proposition that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The Supreme Court has held that Congress has a limited power to abrogate immunity. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congressional abrogation of immunity must meet two requirements: Congress must "unequivocally express[ ] its intent to abrogate the immunity," and Congress must act "pursuant to a valid exercise of power." Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); accord Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114.

To determine whether Congress has acted pursuant to a valid exercise of power, a court must ask, "Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?" Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. This inquiry itself has two components. First, the congressional action must be taken pursuant to a provision that entails the power to abrogate. For example, in Seminole Tribe, the Court held that Congress' Article I authority to regulate interstate and Indian commerce does not include the power to abrogate a state's Eleventh Amendment immunity. Id. at 59-73, 116 S.Ct. 1114; see also In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1145 (4th Cir.1997) (noting that "Congress' powers under Article I cannot be construed to empower it to expand federal jurisdiction by abrogating the states' sovereign immunities"), cert. denied, ---...