Hurst v. Texas Dept. of Assistive & Rehab. Servs.

• Decision Date: 26 March 2007
• Docket Number: No. 05-51656.,05-51656.
• Citation: 482 F.3d 809
• Parties: Louise Elizabeth HURST, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES, also known as DARS; Terry Murphy, Commissioner of DARS, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.3d 809

Louise Elizabeth HURST, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES, also known as DARS; Terry Murphy, Commissioner of DARS, Defendants-Appellees.

No. 05-51656.

United States Court of Appeals, Fifth Circuit.

March 26, 2007.

Michael Earl Urene (argued), Texas RioGrande Legal Aid, Eagle Pass, TX, Alpha Hernandez, Texas RioGrande Legal Aid, Del Rio, TX, Susan F. Zinn, San Antonio, TX, for Hurst.

Joe Henry Thrash (argued), Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS and STEWART, Circuit Judges, and CRONE^*, District Judge.

W. EUGENE DAVIS, Circuit Judge:

This case presents the question of whether the State of Texas waived its Eleventh Amendment immunity to suit in federal court by accepting federal funding to support its Vocational Rehabilitation Program under Title I of the Rehabilitation Act, 29 U.S.C. § 701-796. The district court agreed with the State of Texas that 29 U.S.C. § 722(c)(5)(J)(i) did not represent a clear-statement of congressional intent to condition the State's receipt of federal funds upon the State's waiver of Eleventh Amendment immunity. We affirm.

I.

BACKGROUND.

Appellant, Louise Elizabeth Hurst (Hurst), filed this suit in district court to review the denial of medical treatment by the Texas Rehabilitation Commission (now the Texas Department of Assistive and Rehabilitative Services, also referred to DARS). Appellant exhausted all available remedies which culminated in an administrative hearing before an administrative law judge who affirmed the denial of medical services and the denial of a motion for reconsideration of that decision.

The defendants in the district court responded to Hurst's suit with a motion to dismiss, based on Eleventh Amendment immunity of the State of Texas to suit in federal court. The magistrate judge to whom the motion was referred found that Congress in § 722(c)(5)(J)(i) clearly conditioned the State's receipt of federal funds under this program upon the State's waiver of Eleventh Amendment immunity. DARS filed objections to the magistrate judge's recommendation. The district court declined to accept the magistrate judge's recommendation and dismissed the case without prejudice on grounds that Congress had not clearly declared its intent to condition the State's receipt of federal funds upon the State's waiver of Eleventh Amendment immunity. Hurst challenges the district court's ruling in this appeal.

II.

WAIVER OF ELEVENTH AMENDMENT IMMUNITY BY A STATE.

The Eleventh Amendment to the United States Constitution states "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.C.S. Const. Amend. 11. There are two well-established exceptions to Eleventh Amendment immunity. First, Congress can abrogate Eleventh Amendment immunity without a state's consent when acting under its authority under the enforcement provisions of § 5 of the Fourteenth Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Second, a state may waive its immunity and consent to suit in federal court. Id. One way a state may waive its Eleventh Amendment immunity is by accepting federal funds disbursed pursuant to Congress's Article I, § 8 spending power that were properly conditioned on the state forgoing its sovereign immunity. Id., n. 1; Pederson v. Louisiana State Univ., 213 F.3d 858, 876 (5th Cir.2000). Hurst argues that the state of Texas has waived its immunity by accepting federal funding of its Vocational Rehabilitation Program, under Title I of the Rehabilitation Act. 29 U.S.C. § 701-796.

A state's receipt of federal funds does not automatically constitute a waiver of its Eleventh Amendment immunity. The Supreme Court in South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) described the limited circumstances in which a waiver will be recognized:

(1) Federal expenditures must benefit the general welfare;

(2) The conditions imposed on the recipients must be unambiguous;

(3) The conditions must be reasonably related to the purpose of the expenditure; and

(4) No condition may violate any independent constitutional prohibition.

Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 278 (5th Cir.2005), citing Dole, 483 U.S. at 207-08, 107 S.Ct. 2793. Dole also recognizes a fifth requirement that the condition may not be coercive. Id. DARS concedes that the Rehabilitation Act satisfies four of the five elements of this test. The parties dispute whether the second requirement, of an unambiguous statement, has been met.

A state waives its immunity by voluntarily participating in federal spending programs only when Congress includes a clear statement of intent to condition participation in the programs on a State's consent to waive its constitutional immunity. Atascadero, 473 U.S. at 247, 105 S.Ct. 3142. "By insisting that congress speak with a clear voice, we enable the States to exercise their choice [to waive sovereign immunity] knowingly." Pace, 403 F.3d at 279 (quoting Pennhurst State Sch. & Hosp. v. Haldeman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694). In seeking to determine whether the language of a condition is sufficiently clear, courts must view the statute "from the perspective of a state official who is engaged in the process of deciding whether the state should accept [federal] funds and the obligations that go with those funds," asking "whether . . . a state official would clearly understand [the nature of the condition]." Arlington Cent. Sch. Dist. Bd. Of Educ. v. Murphy, ___ U.S. ___, 126 S.Ct. 2455, 2459, 165 L.Ed.2d 526 (2006). "In a Spending Clause case, the key is not [the intention of Congress] but what the States are clearly told regarding the conditions that go along with the acceptance of . . . funds." Id. at 2463. A statute must furnish "clear notice regarding the liability at issue" to which the state has allegedly waived its immunity. Id. at 2459.

Hurst argues that § 102 of the Rehabilitation Act codified at 29 U.S.C. § 722(c)(5)(J)(i) provides a clear-statement of intent to require a state to waive its Eleventh Amendment immunity in order to receive federal funds based on the underlined language in this subsection of § 722:

(i) in general. Any party aggrieved by a final decision described in subparagraph (I), may bring a civil action for review of such decision. The action may be brought in any state court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy. (Emphasis added.)

29 U.S.C. § 722(c)(5)(J)(i)(underlining added). We have found no federal circuit court decisions addressing the specific issue presented in this case, i.e. whether the above quoted provision satisfies the clear statement rule.¹ Fortunately, the United States Supreme Court has addressed this issue in regard to a different section of the Rehabilitation Act with language very similar to that used in § 722.

In Atascadero the statute in question provided that:

the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] [including the right to sue in federal court to enforce obligations imposed under the statute] shall be available to any person aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under section 504 [29 U.S.C. § 794] of this title.

29 U.S.C. § 794a. In finding a lack of federal jurisdiction under the Eleventh Amendment, the Court reasoned that "a general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero, 473 U.S. at 246, 105 S.Ct. 3142. The court also considered whether the above statute could support a conclusion that the State consented to suit in federal court by accepting funds under § 504 of the Rehabilitation Act. The Court rejected the reliance by the Ninth Circuit Court of Appeals on the fact that the states were the express intended recipients of federal assistance and that the statute authorized suits by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities as consent by the State to be sued in federal court. Id. at 247, 105 S.Ct. 3142. Rather it concluded that the statute "[fell] far short of manifesting a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity." Id.² Hurst's argument is indistinguishable from the argument rejected in Atascadero and the statutory language at issue in this case is similarly indistinguishable from the language at issue in Atascadero.

Hurst seeks to distinguish Atascadero on the basis that the statute at issue there provided a federal court remedy against "any recipient of federal assistance or federal provider of such assistance" without expressly extending such liability to States. Hurst points out that by contrast the statutory framework in this case specifically makes acts by a "designated State unit" subject to judicial review in state or federal courts. 29 U.S.C. § 722(c). Hurst is correct that Congress's lack of specificity concerning the entity or entities it wished to subject to liability influenced the Court's decision in Atascadero. But Congress's abrogation of state immunity was also an issue in that case and the lack of specificity was discussed in its consideration of the abrogation issue, not the waiver issue. The court stated,

The statute thus provides remedies for violations of § 504 by "any recipient of Federal assistance." There is no claim here that the State of...