Faibisch v. University of Minnesota, No. 01-1140.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Wollman
• Citation: 304 F.3d 797
• Parties: Loren FAIBISCH, Appellant, v. UNIVERSITY OF MINNESOTA; University of Minnesota Board of Regents; National Center on Educational Outcomes; Jim Ysseldike, an individual and in his official capacity, Appellees.
• Docket Number: No. 01-1140.
• Decision Date: 20 September 2002

304 F.3d 797 Loren FAIBISCH, Appellant,
v.
UNIVERSITY OF MINNESOTA; University of Minnesota Board of Regents; National Center on Educational Outcomes; Jim Ysseldike, an individual and in his official capacity, Appellees. No. 01-1140. United States Court of Appeals, Eighth Circuit. Submitted: October 18, 2001. Filed: September 20, 2002. Rehearing and Rehearing En Banc Denied: November 13, 2002.^*

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Jill Clark, argued, Golden Valley, MN (Theresa L. Schulz, Lake Elmo, MN, on the brief), for appellant.

Thomas J. Schumacher, argued, Minneapolis, MN (Mark B. Rotenberg, on the brief), for appellee.

Before WOLLMAN,¹ Chief Judge, FAGG, and RILEY, Circuit Judges.

WOLLMAN, Chief Judge.

Loren Faibisch appeals the district court's grant of the defendants' motion to dismiss. We affirm in part and reverse and remand in part.²

I.

Faibisch is a legally blind woman who worked at the National Center on Educational Outcomes (the Center) at the University of Minnesota. Her supervisor at the Center was defendant Dr. James Ysseldike. At various times during her employment, Faibisch requested accommodations necessary for her to perform her job. Although she initially received accommodations, disputes arose within the University over which department's budget was to pay for them. Faibisch claims that as a result of the budgetary wrangling, Ysseldike and others at the University failed to accommodate her needs. Ysseldike expressed his frustration over the fact that he considered the accommodations to be too expensive and time-consuming. In addition, he stated that he would not have hired Faibisch if he had known that the Center would be responsible for accommodating her. The Center declined to renew Faibisch's contract, and she was terminated on or about June 30, 1998.

Faibisch filed a charge with the EEOC and received a right-to-sue letter. On August 6, 1999, she filed suit against, among others, the University and Ysseldike (collectively, the defendants) alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17, as well as asserting state law claims not at issue in this appeal. She filed an amended complaint on October 19, 1999. On January 26, 2000, she filed a second amended complaint but did not serve it until June of 2000. The second amended complaint asserted an additional claim under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a).

II.

The defendants moved to dismiss the second amended complaint under Fed.

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R.Civ.P. 12(b)(1), (6), and 12(c). Faibisch moved for a continuance and to strike certain exhibits filed with the defendants' motion. The district court granted the defendants' motion for dismissal of the ADA and Rehabilitation Act claims on the basis of sovereign immunity and the Title VII claim for failure to exhaust administrative remedies, and denied Faibisch's motions for continuance and to strike.

A. The ADA Claim

The district court granted the defendants' motion to dismiss the University because it found that the Eleventh Amendment barred Faibisch's ADA claim. In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the Supreme Court ruled that a state is immune from suit under Title I of the ADA unless it waives its sovereign immunity. On appeal, Faibisch contends that the state of Minnesota waived its sovereign immunity by virtue of a law that was enacted after the district court's decision in her case. See 2001 Minn. Sess. Law Serv. Ch. 159, § 1.05, Subd. 4 [hereinafter Chapter 159].³ The University counters that the enactment of the new law does not revive Faibisch's claim because it does not waive the state's sovereign immunity to ADA suits brought in the federal courts, and that in any event the new statute does not apply retroactively.

To waive sovereign immunity, a state must make a clear, unequivocal statement that it wishes to do so. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). A state's interest in sovereign immunity pertains not only to whether it may be sued but also to where it may be sued. Id. at 241, 105 S.Ct. 3142 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)).

The only language in Chapter 159 that could possibly be construed to indicate a waiver of sovereign immunity for cases in federal court is the phrase "in any court of competent jurisdiction." The Supreme Court has ruled, however, that such language is not a clear enough indicator that a state has waived its sovereign immunity to suits in federal court. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (quoting Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573, 577-79, 66 S.Ct. 745, 90 L.Ed. 862 (1946)). We agree with the University that Chapter 159 does not waive the State's immunity to suits in federal court, and thus we need not determine whether the statute applies retroactively.

As to defendant Ysseldike, the district court dismissed the claim on the grounds that the ADA does not permit suits under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Subsequent to the district court's ruling, we held in Gibson v. Arkansas Department of Correction, 265 F.3d 718, 722 (8th Cir.2001), that such suits are permitted. Thus, Ysseldike, as a state official, may not rely on the Eleventh Amendment bar.

Ysseldike concedes the effect of our decision in Gibson, but contends that Faibisch's ADA claim still must fail because she lacks standing to pursue injunctive

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relief. As an initial point, Faibisch argues that the district court failed to indicate which subsection of Rule 12 was applicable to the defendants' standing argument. We have held, however, that if a plaintiff lacks standing, the district court has no subject matter jurisdiction. Friedmann v. Sheldon Cmty. Sch. Dist., 995 F.2d 802, 804 (8th Cir.1993). Therefore, a standing argument implicates Rule 12(b)(1).

Faibisch further asserts that because Ysseldike offered no materials outside the pleadings on his 12(b)(1) motion, the motion must be treated as a 12(b)(1) facial challenge. In Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990), we stated that "the trial court is free to ... satisfy itself as to the existence of its power to hear the case." See also id. at 729-30 & n. 6 (reviewing facial and factual challenges to subject matter jurisdiction). Because Faibisch's approach would constrain the power of a court hearing a 12(b)(1) motion, we reject her contention that factual challenges arise only when a court considers matters outside the pleadings. When a district court engages in a factual review, it inquires into and resolves factual disputes. Western Neb. Res. Council v. Wyoming Fuel Co., 641 F.Supp. 128, 129-30 (D.Neb.1986) (cited with approval in Osborn, 918 F.2d at 728 n. 5). Here, the district court inquired into the type of relief sought and made factual determinations about the availability of that relief, thereby indicating that its review was factual in nature. Any findings of fact made by the district court are reviewed for clear error. Briley v. Carlin, 172 F.3d 567, 570 (8th Cir.1999)...