Hurst v. Texas Dep't of Assistive & Rehab. Serv., CIV. DR-03-CA-104-AM.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtLudlum
Citation392 F.Supp.2d 794
PartiesLouise Elizabeth HURST, Plaintiff, v. TEXAS DEP'T OF ASSISTIVE & REHAB. SERV., et al., Defendants.
Docket NumberNo. CIV. DR-03-CA-104-AM.,CIV. DR-03-CA-104-AM.
Decision Date22 September 2005
392 F.Supp.2d 794
Louise Elizabeth HURST, Plaintiff,
TEXAS DEP'T OF ASSISTIVE & REHAB. SERV., et al., Defendants.
No. CIV. DR-03-CA-104-AM.
United States District Court, W.D. Texas, Del Rio Division.
September 22, 2005.

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Alpha Hernandez, Texas Rural Legal Aid, Del Rio, TX, Counsel for Plaintiff.

Joe H. Thrash, Assistant Attorney General for the State of Texas, Austin, TX, Counsel for Defendants.


LUDLUM, District Judge.

Pending before the Court in the above styled cause is the United States Magistrate Judge's Report and Recommendation that the Defendants' First Amended Motion to Dismiss, filed under FED. R. CIV. P. 12(b)(1) and 12(b)(6), be denied. The Defendants timely filed a written objection to the United States Magistrate Judge's recommendation. Due to the Defendants' objection, and in accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), this Court must now conduct a de novo review of the Defendants' motion.


Louise Elizabeth Hurst ("Hurst") was diagnosed with cervical spine damage in June 2002. She sought assistance for her physical circumstances from the Texas Department of Assistive and Rehabilitative Services ("Department"), which was formerly known as the Texas Rehabilitation Commission. The Department determined that Hurst was eligible for vocational rehabilitation services and referred her to a neurologist for a consultation.

The neurologist recommended immediate surgery to fuse Hurst's cervical vertebrae. The Department also approved, at Hurst's request, a second opinion consultation with another doctor. That doctor also recommended immediate surgery to fuse the vertebrae. He also referred Hurst to an infectious disease specialist to determine the nature and extent of an infection in Hurst's neck before setting a date for surgery. In March 2003, the Department approved Hurst's consultation with the infectious disease specialist, who then requested tests to determine the nature of Hurst's infection.

Around March 17, 2003, Hurst's caseworker indicated by telephone that the Department had approved the tests requested by the infectious disease specialist and the surgery to fuse her vertebrae. Later that month, however, Hurst's caseworker told her in person that the Department would not approve the tests or surgery because the Department did not cover exploratory surgery. In a letter dated March 31, 2003, the Department confirmed its decision to Hurst and informed her that it would not approve any further medical treatment.

Hurst filed a timely appeal of the Department's decision and proceeded to exhaust all available administrative remedies. Hurst brought an action in this Court, pursuant to 29 U.S.C. § 794a(a)(2), 29 U.S.C. § 722(c)(5)(J)(i), and 28 U.S.C. § 1331 for judicial review of the Department's decision. The Department responded by filing a motion to dismiss stating among other things that: 1) Hurst had failed to state a claim under § 504 of the Rehabilitation Act of 1973 (codified in 29 U.S.C. § 794); and, 2) Texas had not waived its Eleventh Amendment sovereign immunity to submit itself to this Court's jurisdiction under § 722(c)(5)(J)(i). Hurst responded that she had stated a claim for relief under § 794a(a)(2) and that the Department and Texas had waived Eleventh Amendment immunity under

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§ 722(c)(5)(J)(i) when they accepted federal funds.

The United States Magistrate Judge found that Hurst had failed to state a claim under § 794a(a)(2),1 but that Hurst could still obtain relief under § 722(c)(5)(J)(i)2. The Department argues that the Magistrate Judge should have dismissed Hurst's claims that were brought under § 794a(a)(2) for failure to claim any form of discrimination. The Department further argues that her § 722(c)(5)(J)(i) claim for judicial review is barred by Texas's claim of Eleventh Amendment immunity. The Court is in agreement with the Magistrate Judge's finding that Hurst has failed to state a claim pursuant to § 794a(a)(2). As a result, any claim Hurst brought under § 794a(a)(2) is dismissed. The Court must now determine whether Hurst may obtain relief under § 722(c)(5)(J)(i).


An in-depth analysis of this specific issue — § 722(c)(5)(J)(i) jurisdiction and a state's claim of Eleventh Amendment immunity — reveals to the Court that this is a novel issue that has yet to be addressed by or within the Fifth Circuit. In fact, as of the writing of this opinion, the Court has found only two cases, both unpublished, that attempt to resolve § 722(c)(5)(J)(i) jurisdiction and Eleventh Amendment immunity. See White v. Vocational Rehab., 2004 WL 3049760 (D.Or. Dec.20, 2004) (finding that Oregon waived Eleventh Amendment immunity for § 722(c)(5)(J)(i) judicial review when it accepted federal funds), adopted by White v. Vocational Rehab., 2005 WL 771395 (D.Or. Apr.5, 2005); Richards v. Alibozek, 2002 WL 1815918, at *5, 2002 Conn.Super. LEXIS 2262 (Conn.Super. June 26, 2002) (stating that "because the General Assembly has not waived sovereign immunity for suits under the Rehabilitation Act, the state court is not a court `of competent jurisdiction' within § 722(c)(5)(J)(i).")3. The Court, however, is confident in its ability to reach a decision based on a combination of information before it and the vast amount of Eleventh Amendment jurisprudence, for as Chief Justice Marshall opined, "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803).

A. Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution states the following:

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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 Fifth Circuit has instructed that "[t]he immunity afforded to states under the Eleventh Amendment `implicates the fundamental constitutional balance between the Federal Government and the States.' Therefore, at its core, the Eleventh Amendment serves `as an essential component of our constitutional structure.'" Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 276 (5th Cir.2005) (en banc) (citations omitted).

B. Exceptions to Eleventh Amendment Immunity

Eleventh Amendment immunity, however, is not absolute in the protection it affords a state from law suits. See id. Congress may abrogate a state's Eleventh Amendment immunity by enacting legislation under the Fourteenth Amendment's § 5 Enforcement Clause4. See id. at 276-77. "Congress can single-handedly strip the states of their Eleventh Amendment immunity and thereby authorize federal court suits by individuals against the states. When Congress does this, it is exercising its power to abrogate Eleventh Amendment immunity."5 Id. at 277. On the other hand, a state may waive its immunity or consent to suit in federal court. "[A] State's sovereign immunity is `a personal privilege which it may waive at pleasure.'" College Say. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (quoting Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883)). "The decision to waive that immunity, however, `is altogether voluntary on the part of the sovereignty."' Id. (quoting Beers v. Ark., 61 U.S. 527, 20 How. 527, 529, 15 L.Ed. 991 (1857)). As the Fifth Circuit has illustrated, "[w]hen a state consents to suit or waives its Eleventh Amendment immunity, it knowingly and voluntarily forfeits the immunity's protections." Pace, 403 F.3d at 277 n. 13.

C. Article I Spending Clause Powers and Waiver of Eleventh Amendment Immunity

Section 102 of the Rehabilitation Act (as codified in 29 U.S.C. § 722) was enacted under Congress's Article I Spending Clause powers.6 See Rehabilitation Act of 1973, 93 Pub.L. No. 112, 87 Stat. 355 (Sept. 26, 1973). The Rehabilitation Act Amendments of 1998 amended § 722 to include the private right of action for review of a hearing officer's decision in Federal court through § 722(c)(5)(J)(i). See Rehabilitation Act Amendments of 1998, 105 Pub.L. No. 220, 112 Stat. 936 (Aug. 7, 1998). The Supreme Court has "repeatedly characterized ... Spending Clause legislation as `much in the nature of

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a contract: in return for federal funds, the recipients agree to comply with federally imposed conditions.'" Barnes v. Gorman, 536 U.S. 181, 186, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (emphasis in original) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). "Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." Id. (quoting Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531). To be valid, Spending Clause legislation...

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  • Hurst v. Texas Dept. of Assistive & Rehab. Servs., 05-51656.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Marzo 2007
    ...sitting by designation. 1. Several district courts have addressed this question. See Hurst v. Tex. Dep't of Assistive & Rehab. Serv., 392 F.Supp.2d 794, 801-02 (W.D.Tex.2005) (pending the instant appeal); White v. Vocational Rehab., 2004 WL 3049760, at *2 (D.Or. Dec.20, 2004); adopted by 20......

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