Garrett v. Univ. Alabama, Nos. 98-6069

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: RONEY; COOK; Moreover
• Citation: 193 F.3d 1214
• Parties: (11th Cir. 1999) PATRICIA GARRETT, Plaintiff-Appellant, v. THE UNIVERSITY OF ALABAMA AT BIRMINGHAM BOARD OF TRUSTEES, Defendant-Appellee, THE UNITED STATES OF AMERICA, Intervenor. MILTON ASH, Plaintiff-Appellant, v. ALABAMA DEPARTMENT OF YOUTH SERVICES, Defendant-Appellee. THE UNITED STATES OF AMERICA, Intervenor
• Docket Number: 98-6070,Nos. 98-6069
• Decision Date: 26 October 1999

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193 F.3d 1214 (11th Cir. 1999) PATRICIA GARRETT, Plaintiff-Appellant,
v.
THE UNIVERSITY OF ALABAMA AT BIRMINGHAM BOARD OF TRUSTEES, Defendant-Appellee, THE UNITED STATES OF AMERICA, Intervenor. MILTON ASH, Plaintiff-Appellant,
v.
ALABAMA DEPARTMENT OF YOUTH SERVICES, Defendant-Appellee. THE UNITED STATES OF AMERICA, Intervenor. Nos. 98-6069, 98-6070 IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT Oct. 26, 1999

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Appeals from the United States District Court for the Northern District of Alabama, D. C. Docket No. CV-97-AR-92-S, D. C. Docket No. CV-97-AR-2179-S

Before ANDERSON, Chief Judge, RONEY, Senior Circuit Judge, and COOK^*,Senior District Judge.

RONEY, Senior Circuit Judge:

These two consolidated cases appeal the grant of summary judgments to two defendant Alabama state agencies on the ground of sovereign immunity. They raise the question that is being litigated in various jurisdictions of whether a state is immune from suits by state employees asserting rights under certain federal laws. The three statutes here are: the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213; Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. 794; and the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601-2654. Following recent precedent in this Circuit, we hold that the state is not immune from suit under the ADA and the Rehabilitation Act and reverse the judgments of the district court against plaintiffs Patricia Garrett and Milton Ash as to those two statutes and remand the two cases for further proceedings. As to the FMLA, we hold that, although it might well not be immune from suit under certain other provisions of the Act, a decision we need not make, the state is immune from suit under the specific provisions at issue here. We therefore affirm the district court as to the summary judgment on that cause of action against plaintiff Patricia Garrett, the only plaintiff to make a claim under the FMLA.

Although generally called Eleventh Amendment immunity, which amendment simply bars a federal court from hearing claims against a state by a citizen of another state,¹ it has long been recognized that each state is a sovereign entity in our federal system and is not amenable to suit by an individual without its consent. See Seminole Tribe of Florida v. Florida, 517 U.S. 44,54 (1996) and Hans v. Louisiana, 134 U.S. 1 (1890).

Under certain circumstances, however, the United States Congress can pass laws which give individual citizens a right of action in federal court against an unconsenting state. Those circumstances require first, that "Congress has `unequivocally expresse[d] its intent to abrogate the immunity,'" which "must be obvious from `a clear legislative statement,'" and second, that Congress has acted "pursuant to a valid exercise of power." Seminole Tribe of Florida v. Florida, 517 U.S. at 55.

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So far, the Supreme Court has held that Congress can abrogate state immunity only when it acts pursuant to section 5, the enforcement provision of the Fourteenth Amendment to the Constitution, which provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. amend. XIV, 5. The Court has held that Congress does not have authority to abrogate state sovereign immunity when it acted only pursuant to the Commerce Clause. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

This frames the issue in this field of developing law: were these three statutes passed with the unequivocal and clear intent to give individuals a right of action against a state, and do these statutes reflect a valid exercise of congressional power under the Fourteenth Amendment.

The Supreme Court has laid out a few guidelines in recent cases. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court struck down the Religious Freedom Restoration Act of 1993(RFRA), 42 U.S.C. 2000bb-1(1994), an act that Congress purportedly passed pursuant to its Fourteenth Amendment enforcement powers, and in direct response to the Supreme Court's decision in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872(1990). In Smith, the Court had held that the Free Exercise Clause of the First Amendment does not require states to justify by a compelling interest generally applicable, neutral laws that coincidentally burden religious practices. See Smith, 494 U.S. at 885-887. In direct response to Smith, Congress passed RFRA, which required all laws that burden a group's religion, even neutral laws of general applicability, to be narrowly tailored and justified by a compelling interest. See 42 U.S.C. 2000bb-1. In striking down RFRA, the Supreme Court warned that section 5 of the Fourteenth Amendment grants Congress power to enforce the Fourteenth Amendment, not to define the substance of the amendment, so that Congress' power is remedial in nature. See Boerne, 521 U.S. at 519. To qualify as remedial, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." 521 U.S. at 520.

In Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, _ U.S. _, 119 S.Ct. 2199(1999), a patentee brought an action against a state agency alleging infringement of a patented apparatus and method for administering college investment programs. The Court held that the Patent and Plant Variety Protection Remedy Clarification Act could not be sustained under the City of Boerne analysis as legislation enacted to enforce any guarantee of the Fourteenth Amendment. See College Savings Bank, 119 S.Ct. at 2202. In looking at whether the Patent Remedy Act was remedial or preventive legislation, the Court stated, "we must first identify the Fourteenth Amendment `evil' or `wrong' that Congress intended to remedy, guided by the principle that the propriety of 5 legislation `must be judged with reference to the historical experience . . . it reflects.'" College Savings Bank, 119 S.Ct. at 2207, citing City of Boerne, 521 U.S. at 525. The Court then looked to the legislative history to see if there was evidence of a pattern of constitutional violations perpetrated by the states, such as there were in the voting rights cases, and found none. The Court noted that Congress barely considered the availability and constitutional adequacy of state law remedies. The Court noted that while the "lack of support in the legislative record is not determinative . . . identifying the targeted constitutional wrong or evil is still a critical part of our 5 calculus. . . . " 119 S.Ct. at 2209. The Court said that the record offered only "scant support for Congress' conclusion that states were depriving patent owners of property without due process of law by

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pleading sovereign immunity in federal court patent actions. 119 S.Ct. at 2209.

With these guidelines in mind, we consider each of the acts at issue in this case.

I. The ADA

Congress having unequivocally expressed its intent for the ADA to abrogate sovereign immunity, 42 U.S.C. 12202 (1994) ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of [the ADA]."), this Court in Kimel v. State Bd. of Regents 139 F.3d 1426, 1433 (11th Cir.1998), cert. granted, _U.S. _, 119 S.Ct. 901(Jan. 25, 1999) has already held that the ADA is a valid exercise of the Enforcement Clause of the Fourteenth Amendment and that the states do not have sovereign immunity from claims brought under the ADA. We note that Kimel reversed a district court decision and was decided by our Court after the district court had made its determination in this case. We, of course, are bound by the decision of the Court in Kimel. See United States v. Woodard, 938 F.2d 1255, 1258 (11th Cir.1991), cert. denied, 501 U.S. 1109(1992). We note also that certiorari has been granted in Kimel and any resulting decision of the Supreme Court will probably catch up with this case before a final determination of the merits of the plaintiffs' claims.

We, therefore, reverse the summary judgment entered for the University of Alabama at Birmingham Board of Trustees and against Patricia Garrett on her ADA claim in Appeal No. 98-6090 (D.C. Docket No CV-97-AR-92-S), and the summary judgment for the Alabama Department of Youth Services and against Milton Ash on his ADA claim in Appeal No. 98-6070 (D.C.Docket No. CV-97-AR- 2179-S), and remand for further proceedings.

II. The Rehabilitation Act

In our judgment, the decision under the Rehabilitation Act is also controlled by this court's decision as to the ADA in Kimel. The language of the Rehabilitation Act as to congressional intent to abrogate a states' immunity from suit in federal court is as clear as it was under the ADA. See 42 U.S.C. 2000d-7(a)(1) (1994) ("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 of 1973 ...."). The statutes serve the same purpose and were born of the same history of discrimination:

The Supreme Court has previously held that the disabled are protected against discrimination by the Equal Protection Clause. See City of Cleburne, 473 U.S. at 450, 105 S. Ct. at 3259-60. Here, the purpose of both the ADA and section 504 of the Rehabilitation Act is to prohibit discrimination against the disabled. See 42 U.S.C. 12101(b)(ADA); 29 U.S.C. 701(b)(1)(F)(Rehabilitation Act). In both acts, Congress explicitly found that persons with disabilities have suffered discrimination. See 42 U.S.C. 12101(a)(ADA);29 U.S.C. 701 (a)(5)(Rehabilitation Act). Both the ADA and the Rehabilitation Act therefore are within the scope of appropriate legislation under the Equal Protection Clause...