Constantine v. Rectors, George Mason Univ.

• Decision Date: 13 June 2005
• Docket Number: No. 04-1410.,04-1410.
• Parties: Carin Manders CONSTANTINE, Plaintiff-Appellant, v. The RECTORS AND VISITORS OF GEORGE MASON UNIVERSITY; Mark F. Grady, in his individual capacity and his official capacity as Dean of George Mason Law School; Daniel D. Polsby, in his individual capacity and his official capacity as Associate Dean for Academic Affairs; Winston S. Moore, in his individual capacity and his official capacity as Associate Dean for Student Academic Affairs; Nelson Lund, in his individual capacity and his official capacity as a Professor of Law, Defendants-Appellees, United States of America, Intervenor. American Association of People with Disabilities; The Bazelon Center, for Mental Health Law; Disability Rights Education and Defense Fund; Legal Aid Society, Employment Law Center; Training and Advocacy Support Center of the National Association of Protection and Advocacy Systems, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

411 F.3d 474

Carin Manders CONSTANTINE, Plaintiff-Appellant, v. The RECTORS AND VISITORS OF GEORGE MASON UNIVERSITY; Mark F. Grady, in his individual capacity and his official capacity as Dean of George Mason Law School; Daniel D. Polsby, in his individual capacity and his official capacity as Associate Dean for Academic Affairs; Winston S. Moore, in his individual capacity and his official capacity as Associate Dean for Student Academic Affairs; Nelson Lund, in his individual capacity and his official capacity as a Professor of Law, Defendants-Appellees, United States of America, Intervenor.

American Association of People with Disabilities; The Bazelon Center, for Mental Health Law; Disability Rights Education and Defense Fund; Legal Aid Society, Employment Law Center;

Training and Advocacy Support Center of the National Association of Protection and Advocacy Systems, Amici Supporting Appellant.

No. 04-1410.

United States Court of Appeals, Fourth Circuit.

Argued February 3, 2005.

Decided June 13, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Michael Jackson Beattie, Beattie & Associates, P.L.L.C., Fairfax, Virginia, for Appellant. Kevin Kendrick Russell, United States Department Of Justice, Washington, D.C., for Intervenor. William Eugene Thro, State Solicitor General, Office of the Attorney General of Virginia, Richmond, Virginia; Thomas Martin Beck, Jones Day, Washington, D.C., for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, Maureen Riley Matsen, Deputy State Solicitor General, Alison Paige Landry, Senior Assistant Attorney General, Jeffrey Brandwine, Assistant Attorney General, Brian E. Walther, Assistant Attorney General Richmond, Virginia, for Appellees. R. Alexander Acosta, Assistant Attorney General, Jessica Dunsay Silver, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Intervenor. Claudia Center, Lewis Bossing, The Legal Aid Society-Employment Law Center, San Francisco, California, for Amici Curiae Supporting Appellant.

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Reversed and remanded by published opinion. Judge SHEDD wrote the opinion, in which Judge TRAXLER and Judge GREGORY joined.

SHEDD, Circuit Judge.

Carin Constantine sued The Rectors and Visitors of George Mason University ("GMU") and several members of GMU's law school faculty (the "individual defendants"), asserting a First Amendment retaliation claim under 42 U.S.C. § 1983 and disability discrimination claims under Title II of the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act. The defendants moved to dismiss the complaint on the grounds that (1) the Eleventh Amendment barred all claims against GMU and the individual defendants in their official capacities, and (2) the complaint failed to state a claim upon which relief could be granted. The district court declined to rule on the Eleventh Amendment issues but dismissed the complaint for failure to state a claim. For the reasons that follow, we reverse the district court's ruling and remand this case for further proceedings.

I.

Constantine was a student in Professor Nelson Lund's constitutional law course at GMU, a state university that receives federal funds.¹ Constantine suffered from "intractable migraine syndrome," for which she took prescription medication. While taking Professor Lund's final exam, Constantine suffered a migraine headache. She alerted exam administrators to her condition and requested additional time to complete the exam, but they refused. Constantine failed the exam. She then requested a grade appeal and re-examination, but those requests were denied as well.

Constantine complained to Professor Lund, the dean of the law school, and other law school officials about the construction of Professor Lund's exam and GMU's grade appeals process. She publicized her complaints in an article she wrote for the law school newspaper.

About three months after Constantine made her initial request for re-examination, and after she voiced criticism of the grade appeals process, the dean agreed to give Constantine a second chance to take Professor Lund's final exam. Because Constantine was carrying a full load of law school courses during the spring semester, the parties agreed that the re-examination would take place "sometime in June" 2003. On May 17, 2003, however, Constantine received an e-mail notifying her that she must present herself for the re-examination on May 21, 2003.

Constantine notified the dean, the law school registrar, and two other administrators that she would not be able to take Professor Lund's exam at that time because she had a conflict related to another law school course and, in any event, the dean had told her that she would be re-examined in June. These law school officials told Constantine that she should appear for re-examination at the time specified or forfeit her right to take the exam. Constantine requested an opportunity to take the exam in June, but that request was denied.

Constantine then filed this lawsuit and moved the district court for a temporary restraining order. After a hearing, the district court denied the motion. Constantine declined to take Professor Lund's exam on May 21, 2003. GMU later offered to give Constantine another chance to take Professor Lund's exam, but Constantine believes that in retaliation for her criticism of GMU's handling of her case, GMU decided in advance to give her an "F" on the exam. Constantine eventually took Professor Lund's exam, and she received an "F."

As a result of this failing grade in constitutional law, Constantine was not able to graduate on time. Delayed graduation compromised her ability to begin on time the judicial clerkship that she had previously accepted, so Constantine had to inform her judge of the failing grade and obtain special permission to start work a year later. According to Constantine, the "F" on her transcript continues to hamper her employment prospects.

Constantine sued GMU and the individual defendants in their official and individual capacities. She alleges that the defendants' failure to accommodate her physical disability violated her rights under the ADA and the Rehabilitation Act. She further alleges that the individual defendants retaliated against her for criticizing GMU's grade appeals policies and thus violated her First Amendment right to free speech. Constantine seeks monetary damages as well as declaratory and injunctive relief.

The defendants moved to dismiss Constantine's suit, arguing that the Eleventh Amendment bars her claims against GMU and against the individual defendants in their official capacities. Further, the defendants argued that Constantine had failed to state a claim upon which relief can be granted. The district court granted the motion to dismiss under Rule 12(b)(6), ruling only that Constantine had failed to state a claim upon which relief can be granted. This appeal followed.

II.

At the outset, the defendants contend that the district court should have considered their Eleventh Amendment arguments before ruling on the sufficiency of Constantine's allegations under Rule 12(b)(6). 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." The Supreme Court has held 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), and the Eleventh Amendment protects "state agents and state instrumentalities" as well as the States themselves, Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997).

According to the defendants, Eleventh Amendment immunity is a jurisdictional issue that must be decided at the earliest stage of litigation. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The Court held in Steel Co. that a federal court must determine that it has subject-matter jurisdiction over the case before it can pass on the merits of that case. Id. at 89-101, 118 S.Ct. 1003. Rejecting the practice of some appellate courts to decide the merits of a case based on "hypothetical jurisdiction," the Court reaffirmed the principle that subject-matter jurisdiction is a necessary prerequisite to any merits decision by a federal court: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." Id. at 101, 118 S.Ct. 1003. Thus, a federal court necessarily acts ultra vires when it considers the merits of a case over which it lacks subject-matter jurisdiction. Id.²

"Subject-matter jurisdiction ... is an [Article] III as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign." Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Because a federal court's subject-matter jurisdiction is created — and limited — by Article III and federal statutes, "no action of the parties can confer subject-matter jurisdiction upon a federal court," and ordinary principles of consent, waiver, and estoppel do not apply. Id. A federal court has an independent obligation to assess its subject-matter jurisdiction, and it will "raise a lack of subject-matter jurisdiction on its own motion." Id. Because subject-matter limitations "serve institutional interests," they "must be policed by the courts on their own initiative even at the...