Klingler v. Director, Dept. of Revenue, Mo.

• Decision Date: 07 July 2006
• Docket Number: No. 03-2345.,03-2345.
• Parties: Charlotte KLINGLER; Charles Wehner; Shelia Brashear, Appellees, United States of America, Intervenor on Appeal, v. DIRECTOR, DEPARTMENT OF REVENUE, STATE OF MISSOURI, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

455 F.3d 888

Charlotte KLINGLER; Charles Wehner; Shelia Brashear, Appellees, United States of America, Intervenor on Appeal, v. DIRECTOR, DEPARTMENT OF REVENUE, STATE OF MISSOURI, Appellant.

No. 03-2345.

United States Court of Appeals, Eighth Circuit.

July 7, 2006.

Counsel who presented argument on behalf of the appellant was Michael Cook Pritchett, AAG, of Jefferson City, MO.

Counsel who presented argument on behalf of the appellee was Stephen R. Senn of Lakelend, FL. Roberg G. Fegers of Winter Haven, FL and Frederick M. Switzer, III of St. Louis appeared on the brief.

Before WOLLMAN, ARNOLD, and MELLOY, Circuit Judges.

ARNOLD, Circuit Judge.

The disabled people who filed this lawsuit have moved for reconsideration of part of our opinion in Klingler v. Director, Dep't of Revenue, 433 F.3d 1078 (2006) (Klingler III). The plaintiffs contend that our decision that sovereign immunity prohibits the recovery of monetary damages from Missouri must be revisited in light of the Supreme Court's recent decision in United States v. Georgia, ___ U.S. ___, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). In this supplement to our opinion in Klingler III, we consider the plaintiffs' argument but conclude that Georgia does not alter the outcome of this case.

I.

In Klingler III, we held that Missouri's practice of charging a $2 fee for removable placards that permit users to park in spaces reserved for disabled people violated the Americans with Disabilities Act (ADA) and its related regulation prohibiting discriminatory surcharges, 28 C.F.R. § 35.130(f). We therefore affirmed the injunctive and declaratory relief awarded by the district court¹ against the State of Missouri. Klingler III, 433 F.3d at 1082.

In Klingler III, we also rejected for the second time the plaintiffs' argument that they were entitled to monetary damages on their ADA claim. Id. We had reached the same conclusion in an earlier appeal based on Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.1999) (en banc), which held that Title II of the ADA did not validly abrogate state sovereign immunity. See Klingler v. Director, Dep't of Revenue, 281 F.3d 776, 777 (8th Cir.2002) (per curiam) (Klingler I). The plaintiffs urged us to revisit the monetary-damages question in Klingler III, after the Supreme Court had decided Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). In Lane, the Court held that Title II of the ADA was a valid abrogation of sovereign immunity as applied to claims that disabled people were being denied the fundamental right of access to court proceedings. Id. at 531, 533-34, 124 S.Ct. 1978. But we declined to revisit the sovereign immunity question in Klingler III because another panel of this court had already determined that Lane altered Alsbrook only in those cases implicating the fundamental right of access to the courts. Klingler III, 433 F.3d at 1082 (citing Bill M. ex rel. William M. v. Nebraska Dep't of Health & Human Servs., 408 F.3d 1096, 1100 (8th Cir.2005), cert. granted, judgment vacated, and case remanded, sub nom., United States v. Nebraska Dep't of Health & Human Servs., ___ U.S. ___, 126 S.Ct. 1826, ___ L.Ed.2d ___ (2006)).

After this panel approved the Klingler III opinion, but before its official publication, the Supreme Court issued its decision in Georgia. In that case, the Court considered the claims of a disabled inmate who alleged that he was denied accommodation during his imprisonment by the state. Georgia, 126 S.Ct. at 879. The inmate claimed that the conditions of his incarceration violated not only the ADA, but also his eighth amendment right to be free from cruel and unusual punishment (a right made applicable to the states by the due process clause of the fourteenth amendment). The Supreme Court said that there was no doubt that Congress can abrogate sovereign immunity for conduct that actually violates the fourteenth amendment. Georgia, 126 S.Ct. at 881-82. But since the inmate's claims still had to be fleshed out in the district court, the Supreme Court remanded the case "to determine ... on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." Id. at 882 (emphasis added).

The language in Georgia requiring a claim-by-claim determination of whether Congress validly abrogated state sovereign immunity appears inconsistent with the approach we took in Alsbrook, 184 F.3d at 1010, which declared that Title II as a whole was not a valid abrogation of sovereign immunity. It also appears inconsistent with Bill M., 408 F.3d at 1100, which read Lane to "modif[y]" Alsbrook's holding only in cases involving access to the courts. We further note that the Supreme Court recently vacated Bill M. and remanded the case with instructions that it be reconsidered in light of Georgia. United States v. Nebraska Dep't of Health & Human Servs. Finance & Support, ___ U.S. ___, 126 S.Ct. 1826, 164 L.Ed.2d 514 (2006). Because of these developments, we are no longer confident that Alsbrook or Bill M. can serve as reliable bases for resolving the plaintiffs' claims for money damages.

That said, we need not determine how the Court's decision in Georgia may affect the holdings in Alsbrook or Bill M. in order to decide this case. Even though Title II may validly abrogate the states' sovereign immunity in some cases, we do not believe that the present case is one of them. Our reasons are set forth below.

II.

A.

At the outset, we must determine whether it is appropriate for us to address the eleventh amendment issue without the benefit of district court proceedings. In Georgia, 126 S.Ct. at 879-80, the allegations of misconduct by the state had only reached the pleadings stage. Recognizing that, the Supreme Court remanded the case with the observation that "[o]nce [the] complaint is amended, the lower courts will be best situated to determine, on a claim-by-claim basis," whether the ADA abrogated state sovereign immunity. Id. at 881-82. In their submissions to this court, the disabled plaintiffs and the United States, as intervenor, urge us to remand the case back to the district court so that it can make this determination.

We do not see the need for a remand in this case. In Georgia, the courts were dealing with a pro se litigant who had filed a complaint alleging a wide variety of misconduct, some of which the Supreme Court determined needed to be developed further and some of which it described as frivolous. Because the Supreme Court was unclear about the precise nature of the plaintiff's claims, and because the Eleventh Circuit had already instructed the district court to allow the plaintiff to amend his complaint, it made sense to remand the matter. Id. at 880-82.

In this case, however, the record before us is more than sufficient to determine the nature of the disabled plaintiffs' claims. We have the benefit of not only a proper complaint, but also an extensive record created for summary judgment. We see little need for a remand when the issue before us is a purely legal one, namely, whether the ADA validly abrogated state sovereign immunity with respect to the claims of the type advanced by the plaintiffs.

B.

The eleventh amendment provides that "[t]he 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." Although, by its terms, the amendment does not protect states from lawsuits by their own citizens, the Supreme Court has long held that states enjoy immunity from such actions. See Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). As broad as the immunity that the states have is, it is not unlimited. The Court has recognized that § 5 of the fourteenth amendment allows Congress to abrogate sovereign immunity to enforce that amendment's provisions. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 637, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). But the power to enforce constitutional rights does not permit Congress to redefine the substantive protections of the Constitution. City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

There is no question that, in enacting the ADA and authorizing its attendant regulations, Congress intended to abrogate state sovereign immunity. See Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Alsbrook, 184 F.3d at 1005-06. The relevant question here is whether that abrogation is consistent with the scope of the § 5 power. The Supreme Court has come to different conclusions about whether the ADA validly abrogates sovereign immunity. The Court held that states enjoy sovereign immunity from lawsuits seeking money damages that are filed pursuant to Title I of the ADA, which prohibits employment discrimination on the basis of disability. Garrett, 531 U.S. at 360, 121 S.Ct. 955. In Lane, 541 U.S. at 531, 533-34, 124 S.Ct. 1978, the Supreme Court upheld ADA-based suits against states under Title II's requirement of access to government programs and services, at least to the extent that such suits implicate the accessibility of judicial services. Most recently, in Georgia, 126 S.Ct. at 881, the Supreme Court held that Title II also validly abrogates sovereign immunity for conduct that is in itself unconstitutional.

To comply with the method laid out in Georgia, we must begin our analysis by identifying the precise nature of the claims before us. Id. at 882. This...