Douglas v. California Dept. of Youth Authority

• Decision Date: 12 April 2002
• Docket Number: No. 99-17140.,99-17140.
• Citation: 285 F.3d 1226
• Parties: Dossey DOUGLAS, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF YOUTH AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F.3d 1226

Dossey DOUGLAS, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF YOUTH AUTHORITY, Defendant-Appellee.

No. 99-17140.

United States Court of Appeals, Ninth Circuit.

Filed April 12, 2002.

Before: PREGERSON, FERGUSON, and HAWKINS, Circuit Judges.

Order. Dissent by Judge O'SCANNLAIN.

ORDER

The panel has voted to deny and reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The suggestion for rehearing en banc is denied.

O'SCANNLAIN, Circuit Judge, with whom KOZINSKI, KLEINFELD, and RONALD M. GOULD, Circuit Judge, join, dissenting from the denial of rehering en banc:

By failing to rehear Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812 (9th Cir.2001), en banc, we also fail to resolve the conflict between two competing constitutional provisions implicated in this case — namely, the Spending Clause and the Eleventh Amendment. Because I believe that had this important issue received the thoughtful consideration it deserved Douglas would have reached a different result, I respectfully dissent from the order denying rehearing en banc.

I

Courts which must decide whether a State retains its sovereign immunity after accepting conditioned federal funds are caught between two competing lines of jurisprudence. Under the Supreme Court's approach to the Spending Clause of Article I,¹ Congress has great leeway to place conditions on the funding it gives to the States. See South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Yet, under the Supreme Court's Eleventh Amendment sovereign immunity jurisprudence, Congress's ability to place affirmative obligations on the States using its Fourteenth Amendment enforcement power is rapidly diminishing. See, e.g, Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (holding that Title I of the ADA did not validly abrogate States's sovereign immunity); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (holding that the ADEA did not validly abrogate States's sovereign immunity). Each doctrine pulls us in an opposite direction.

Douglas, following our precedent Clark v. California, 123 F.3d 1267 (9th Cir.1997), holds that by accepting federal funds, California waived its sovereign immunity from suits by individuals under § 504 of the Rehabilitation Act. With respect, I believe that Clark is now outdated — and Douglas wrong — for failing to recognize the change in the legal landscape of sovereign immunity and, as I explain below, how that might impact Spending Clause jurisprudence. Furthermore, Douglas notably — and regrettably — fails to cite Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98 (2d Cir.2001), a significant post-Kimel and Garrett case holding that a waiver of sovereign immunity cannot be inferred by mere acceptance of federal funds. In my view, we should have reheard Douglas en banc to consider the important constitutional protections embodied in the Eleventh Amendment — especially in light of recent Supreme Court developments.

II

The California Department of Youth Authority ("CYA") denied Mr. Dossey Douglas employment as a group supervisor because he is color-blind. Mr. Douglas brought a discrimination suit against CYA, claiming that the color vision test violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. The district court granted summary judgment to CYA on the grounds that Douglas failed to exhaust his administrative remedies and that his § 504 claim was filed after the statute of limitations expired.

Before addressing the timeliness of Mr. Douglas's claims, however, our court held that California, by accepting federal funds, waived its sovereign immunity from suits by individuals under § 504 of the Rehabilitation Act. Douglas, 271 F.3d at 820. This allowed Mr. Douglas to proceed with his claim in federal court. Had Douglas not reached this conclusion, Mr. Douglas would have had no discrimination claim against California because Garrett squarely held that Title I of the ADA did not validly abrogate States's sovereign immunity.

The same analysis would apply to § 504 as well. See Kilcullen v. N.Y. State Dep't of Labor, 205 F.3d 77, 82 (2d Cir.2000) ("[T]he validity of abrogation under the twin statutes [ADA and Rehabilitation Act] presents a single question for judicial review."); see also Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir.2001) (holding that § 504 did not validly abrogate States's sovereign immunity).

Douglas reaffirmed Clark, which, in an alternative holding spanning only three paragraphs of analysis,² held that by accepting federal funds a State waives its immunity from suit in federal court. Clark stated that since the Rehabilitation Act "manifests a clear intent to condition a state's participation on its consent to waive its Eleventh Amendment immunity" — and California had accepted federal funds — the State had waived its immunity. Id. at 1271. Douglas, without recognizing the competing commands of the constitutional provisions at issue, simply "adhere[d] to our decision Clark." 271 F.3d at 820.

III

I respectfully suggest that Douglas did not give adequate consideration to the question of whether California waived its sovereign immunity. To establish waiver, Congress must first make it clear that amenability to suit in federal court is a condition of a State accepting federal funds, and, second, the State must make a "clear declaration" that it intends to waive its immunity. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). As Clark and Douglas recognized, § 504 meets the first requirement. Congress explicitly provided: "[a] state shall not be immune under the Eleventh Amendment ... from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973." 42 U.S.C. § 2000d-7(a)(1). See also Lane v. Pena, 518 U.S. 187, 200, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (characterizing the language of § 504 as "an unambiguous waiver" of States's sovereign immunity).

Whether Congress clearly required that a State waive its immunity before accepting federal funds (the first inquiry) is not the same thing, however, as whether the State clearly declared its knowing waiver (the second inquiry). Clark and Douglas fail adequately to address the second requirement, which is a key component of ensuring proper respect for a State's constitutional rights.

A

A State may waive its sovereign immunity by making a "`clear declaration' that it intends to submit itself" to federal court jurisdiction. College Sav., 527 U.S. at 676, 119 S.Ct. 2219 (quoting Great N. Life Ins. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 88 L.Ed. 1121 (1944)); see also Pennhurst State Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (a State's consent to suit must be "unequivocally expressed"). Because a State's decision to waive its immunity must be "altogether voluntary," the "test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." College Sav., 527 U.S. at 675, 119 S.Ct. 2219 (internal quotation marks omitted).

College Savings overruled the doctrine of "constructive waiver" found in Parden v. Terminal Ry., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), which allowed waiver of sovereign immunity "based upon the State's mere presence in a field subject to congressional regulation." College Sav., 527 U.S. at 680, 119 S.Ct. 2219. The "constructive waiver" doctrine is not at issue here, but the Court's recent teachings on how explicit a State's waiver must be are instructive:

There is a fundamental difference between a State's expressing unequivocally that it waives its immunity and Congress's expressing unequivocally its intention that if the State takes certain action it shall be deemed to have waived that immunity. In the latter situation, the most that can be said with certainty is that the State has been put on notice that Congress intends to subject it to suits brought by individuals. That is very far from concluding that the State made an "altogether voluntary" decision to waive its immunity.

Id. at 680-81, 119 S.Ct. 2219 (quoting Beers v. Arkansas, 61 U.S. (20 How.) 527, 529, 15 L.Ed. 991 (1858)) (emphasis added). As with the waiver of any constitutionally protected right, a State must make an "`intentional relinquishment or abandonment of a known right or privilege.'" Id. at 682, 119 S.Ct. 2219 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Finally, courts must "`indulge every reasonable presumption against waiver' of fundamental constitutional rights." Id. (quoting Aetna Ins. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937)) (emphasis added).

Having set forth the standards that guide one portion of the analysis — waiver of sovereign immunity — let us turn to the competing standards that govern the other — the Spending Clause.

B

When exercising its Article I spending power, Congress may condition its grant of funds to the States, even by requiring States to take actions that Congress could not directly require them to take, such as waiving their sovereign immunity. College Sav., 527 U.S. at 685, 119 S.Ct. 2219; Dole, 483 U.S. at 207, 107 S.Ct. 2793 (Congress may accomplish "objectives not thought to be within Article I's enumerated legislative fields ... through the use of the spending power and the conditional grant of federal funds.") (internal quotation marks and citation omitted). Indeed, "such funds are gifts." College Sav., 527 at 686-87, 119 S.Ct....