Doe v. Nebraska

• Decision Date: 07 October 2003
• Docket Number: No. 02-2014NE.,02-2014NE.
• Citation: 345 F.3d 593
• Parties: John Doe; Mary Doe, Individually and as Husband and Wife, and; Jnt, by and through John Doe, his next friend; Jay Brummett, Personal Representative of the Estate of GayLynn Brummett, Plaintiffs — Appellees, United States of America, Intervenor — Appellee, v. The State of Nebraska; Department of Health and Human Services; Michael Johanns, Governor of the State of Nebraska, in his official capacity; Ron Ross, Director of the Nebraska Department of Health & Human Services, in his official capacity; Sandy Thompson, Child Protective Services Case Manager for the Nebraska Department of Health & Human Services, in her official capacity; Patricia Squires, Deceased, Child Protective Services Supervisor and Adoption Unit Supervisor for the Nebraska Department of Health & Human Services, in her official capacity; Daryl Wusk, Administrator of the Lincoln District Office of the Nebraska Department of Health & Human Services, in his official capacity, Defendants — Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

345 F.3d 593

John Doe; Mary Doe, Individually and as Husband and Wife, and; Jnt, by and through John Doe, his next friend; Jay Brummett, Personal Representative of the Estate of GayLynn Brummett, Plaintiffs — Appellees United States of America, Intervenor — Appellee, v. The State of Nebraska; Department of Health and Human Services; Michael Johanns, Governor of the State of Nebraska, in his official capacity; Ron Ross, Director of the Nebraska Department of Health & Human Services, in his official capacity; Sandy Thompson, Child Protective Services Case Manager for the Nebraska Department of Health & Human Services, in her official capacity; Patricia Squires, Deceased, Child Protective Services Supervisor and Adoption Unit Supervisor for the Nebraska Department of Health & Human Services, in her official capacity; Daryl Wusk, Administrator of the Lincoln District Office of the Nebraska Department of Health & Human Services, in his official capacity, Defendants — Appellants.

No. 02-2014NE.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2003.

Filed: October 7, 2003.

Paul R. Elofson, argued, Asst. Attorney General, Omaha, NE (Alan E. Pedersen, Asst. Attorney General, on the brief), for appellant.

Kevin Russell, argued, Attorney, U.S. Dept. of Justice, Appellate Section, Washington, DC (Jessica Dunsay Silver and Seth M. Galanter with the U.S. Dept. of Justice, Civil Rights Div., on the brief), for appellee.

D. Milo Mumgaard, argued, Lincoln, NE, for appellees Brummert, JNT, Mary Doe and John Doe.

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

GayLynn Brummett, through her estate, and Noah Brummett, a child adopted by Jay Brummett and GayLynn,¹ sued the State of Nebraska, the Nebraska Department of Health and Human Services, and various state officials (collectively the defendants or Nebraska) for damages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The defendants moved for summary judgment on the § 504 claim on the basis that they are immune from suit under the Eleventh Amendment of the United States Constitution. The District Court² denied the motion, and this interlocutory appeal followed. We affirm.

I.

Jay and GayLynn were married in 1989. The following year, they discovered that GayLynn had contracted HIV, the virus that causes AIDS. Because they wanted children but did not want to risk infecting Jay or a child during conception or gestation, the Brummetts decided to enroll in a foster-parenting program administered by the Nebraska Department of Social Services (NDSS).³ The Brummetts met the requirements for participating in the program, but they did not inform NDSS about GayLynn's HIV status. After serving as temporary foster parents to several children, the Brummetts decided they wanted to adopt a child and enrolled in the NDSS's "fos-adopt" program. NDSS placed two children with the Brummetts as fos-adopt placements. NDSS placed S.S. with the Brummetts in September 1991, and placed Noah, a three-month old, with the family on March 27, 1992.

On June 2, 1993, nine months after receiving a confidential complaint, NDSS officials confronted GayLynn about her HIV status. At that time, she admitted that she was HIV-positive. A month later, after Noah's biological parents relinquished their parental rights, the Brummetts signed an adoption placement agreement for Noah with NDSS. Shortly thereafter, NDSS officials met several times about the placement of S.S. and Noah with the Does. S.S. was removed from the home in early August 1993 and placed with his relatives. NDSS officials then solicited medical and legal advice about removing Noah from the home. After lengthy administrative and legal proceedings, a county court approved an NDSS plan to remove Noah from the home. Noah was placed with another family on June 25, 1995. Noah's statutory guardian ad litem appealed this ruling, and the Nebraska Court of Appeals reversed the holding of the county court, finding that Noah's best interests would be served by being returned to the Brummetts. The Nebraska Supreme Court refused to hear NDSS's appeal of that decision. NDSS then submitted a new plan to the county court, recommending that Noah's current fos-adopt parents adopt him. The court adopted that plan. In response, the Brummetts filed a petition with the Nebraska Supreme Court, which issued a writ of mandamus ordering the county court to comply with the appeals court's ruling. On February 22, 1996, Noah was returned to the Brummetts. Approximately eight months later, the Brummetts filed with the county court a petition for adoption and name change, which was accompanied by a consent of the NDSS. The day after this filing, GayLynn died from complications related to AIDS. On November 26, 1996, the county court entered a decree of adoption naming the Brummetts the adoptive parents of Noah.

The plaintiffs filed this suit in November 1995. Although the complaint initially involved multiple causes of action, the claims have since been limited to a suit for damages under § 504 by GayLynn's estate and Noah against the State of Nebraska, NDSS, and various state officials sued in their official capacities. In short, the plaintiffs allege that the defendants violated § 504 by excluding GayLynn, because of her HIV status, from participating in Nebraska's foster care and adoption programs. See, e.g., Complaint ¶¶ 60-64 (filed Nov. 8, 1995).

In January 1998, the defendants moved for summary judgment on the § 504 claim on the ground that they are immune from suit under the Eleventh Amendment. The District Court denied the motion, holding, inter alia, that the defendants had waived their sovereign immunity, pursuant to the waiver provision of § 504, 42 U.S.C. § 2000d-7, by accepting federal funds for their foster care and adoption programs. The defendants filed an interlocutory appeal from this order, and the United States intervened on appeal to defend the waiver provision. We stayed consideration of that appeal pending our decision in Jim C. v. United States, 235 F.3d 1079 (8th Cir.2000) (en banc), cert. denied, 533 U.S. 949, 121 S.Ct. 2591, 150 L.Ed.2d 750 (2001). Following our decision in Jim C., a three-judge panel of our Court issued an unpublished opinion in the present case vacating the District Court's decision as to the § 504 claim and remanding the case for reconsideration in light of Jim C. Doe v. Nebraska, No. 99-1024 (8th Cir. Apr. 17, 2001).⁴ On remand, the defendants renewed their motion for summary judgment, arguing that the State of Nebraska had been coerced into waiving its Eleventh Amendment immunity by the federal government's conditioning receipt of federal funding for their foster care and adoption programs on Nebraska's waiver of immunity to suit under § 504. The defendants also argued, relying on Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir.2001), that their waiver of sovereign immunity is invalid because they mistakenly believed Congress had already abrogated such immunity, and therefore they did not knowingly waive their Eleventh Amendment immunity. The District Court rejected both arguments, and denied the motion for summary judgment.

II.

We review de novo the question of whether a state (or its agencies and officials) has waived sovereign immunity. Santee Sioux Tribe v. Nebraska, 121 F.3d 427, 430 (8th Cir.1997), cert. denied, 525 U.S. 813, 119 S.Ct. 48, 142 L.Ed.2d 37 (1998).

The Eleventh Amendment 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. The Eleventh Amendment provides states, and state agencies, see Hadley v. North Ark. Cmty. Technical Coll., 76 F.3d 1437, 1438 (8th Cir.1996), cert. denied, 519 U.S. 1148, 117 S.Ct. 1080, 137 L.Ed.2d 215 (1997), with immunity not only from suits brought by citizens of other states, but also from suits brought by their own citizens. Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Eleventh Amendment immunity, however, is not absolute. The Supreme Court has recognized, among other exceptions, that a state may waive its sovereign immunity by consenting to suit. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).

A state may waive its immunity either by explicitly specifying its intention to subject itself to suit or by voluntarily participating in federal spending programs where Congress expressed a clear intent to condition receipt of federal funds on a state's consent to waive its sovereign immunity. Atasacadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) ("A state may effectuate a waiver of its constitutional immunity by ... waiving its immunity to suit in the context of a particular federal program."). A waiver of Eleventh Amendment immunity as a condition of the receipt of federal funds should be found "only where stated `by the most expressive language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)) (alteration by Edelman Court).

Under the Rehabilitation Act, states that accept federal funds are required by statute to waive their Eleventh Amendment immunity to § 504 claims. 42 U.S.C. § 2000d-7 ("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 ... or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial...