Reickenbacker v. Foster

• Decision Date: 03 December 2001
• Docket Number: No. 00-31121,00-31121
• Parties: (5th Cir. 2001) BOBBY JOE REICKENBACKER; JAMES HOGG; LONNIE BARNES; VIDEL TASBY; WARNER WILEY; MICHEAL JUENGAIN, Plaintiffs-Appellees, v. M J FOSTER, JR, Etc; ET AL, Defendants, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 974

274 F.3d 974 (5th Cir. 2001)

BOBBY JOE REICKENBACKER; JAMES HOGG; LONNIE BARNES; VIDEL TASBY; WARNER WILEY; MICHEAL JUENGAIN, Plaintiffs-Appellees, v. M J FOSTER, JR, Etc; ET AL, Defendants, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Defendant-Appellant.

No. 00-31121

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

December 3, 2001

Revised December 21, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court For the Middle District of Louisiana

Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We are asked to decide whether Title II of the Americans with Disabilities Act of 1990 and § 504 of the Rehabilitation Act of 1973 validly abrogate Eleventh Amendment sovereign immunity. We hold that they do not, and that the state defendant here is entitled to sovereign immunity. We therefore reverse.

I

On October 29, 1999, the plaintiffs filed a complaint in federal district court seeking injunctive relief for a proposed class of mentally ill prisoners in Louisiana for allegedly deficient mental health services. That complaint asserted claims against state officers under the Eighth Amendment and 42 U.S.C. § 1983, and claims against both state officers and the Louisiana Department of Public Safety and Corrections ("LDPSC") under Title II of the Americans with Disabilities Act¹ and § 504 of the Rehabilitation Act.²

Plaintiffs amended their complaint to seek relief under the ADA and Rehabilitation Act only against LDPSC. LDPSC, asserting sovereign immunity, moved to dismiss the claim. The motion was denied, and LDPSC appeals.

II

Under the collateral order doctrine, we have jurisdiction over this appeal from a denial of a motion to dismiss on the grounds of state sovereign immunity.³ Our review is de novo.⁴

III

The Eleventh Amendment, while textually extending sovereign immunity only to suits against a State by citizens of another state,⁵ also confirms that the Constitution's grant of judicial power did not contemplate suits against the sovereign States without their consent.⁶ Sovereign immunity can be waived,⁷ of course, and it is no bar to suits for injunctive relief against state officials.⁸ But there is no waiver here, nor any effort to properly proceed under Ex parte Young.⁹

Congress may abrogate state sovereign immunity when it "both unequivocally intends to do so and 'act[s] pursuant to a valid grant of constitutional authority.'"¹⁰ The ADA and Rehabilitation Act indisputably contain unequivocal statements of intent to abrogate.¹¹ It is now settled that Congress may not act to abrogate state sovereign immunity through any of its Article I enumerated powers,¹² but may abrogate state sovereign immunity through a proper exercise of its powers under § 5 of the Fourteenth Amendment.¹³ As a result, States may only be sued under the ADA and Rehabilitation Acts to the extent that those statutes, inasmuch as they are directed at unconstitutional discrimination by the States,¹⁴ are appropriate exercises of the § 5 power.¹⁵ Before reaching this question, we first address whether our prior holding that Title II validly abrogated state sovereign immunity binds us still.

IV

A

LDPSC must demonstrate here that our decision in Coolbaugh v. Louisiana¹⁶ that Title II of the ADA validly abrogated Eleventh Amendment sovereign immunity has been so undercut by recent decisions of the Supreme Court that it no longer binds us.¹⁷ "It is the practice of this Circuit for three-judge panels to abide by a prior Fifth Circuit decision until the decision is overruled, expressly or implicitly, by either the United States Supreme Court or by the Fifth Circuit sitting en banc."¹⁸

B

In Coolbaugh, this Court held, following the Supreme Court's analytical framework in City of Boerne v. Flores,¹⁹ that the ADA validly abrogated state sovereign immunity as an exercise of the § 5 power. While the suit was brought under Title II of the ADA,²⁰ Coolbaugh also analyzed and referred to other portions of the ADA, most notably Title I:

We are persuaded that Congress' scheme in the ADA to provide a remedy to the disabled who suffer discrimination and to prevent such discrimination is not so draconian or overly sweeping to be considered disproportionate to the serious threat of discrimination that Congress perceived .... For example, in Title I, 42 U.S.C. Section 12112(b)(5)(A) declares it discriminatory to reject an employee whose mental or physical limitation may be reasonably accommodated .... Congress made these particularized judgments after hearing testimony on the reasonableness and feasibility of these provisions.

In sum, the ADA represents Congress' considered efforts to remedy and prevent what it perceived as serious, widespread discrimination against the disabled.²¹

In light of its holistic approach, other courts have characterized Coolbaugh as holding that the entire ADA abrogates state sovereign immunity, not just Title II.²²

Of course, Coolbaugh's upholding of Title I has already been overruled in Garrett v. Board of Trustees of the University of Alabama,²³ which held that Title I of the ADA did not validly abrogate state sovereign immunity.²⁴ At the same time, Garrett expressly declined to decide whether Title II of the ADA similarly failed to abrogate state sovereign immunity.²⁵

C

This Court has suggested several times that Coolbaugh may no longer be good law.²⁶ The plaintiffs argue, however, that our decision in Neinast v. Texas²⁷ reaffirmed Coolbaugh after the Supreme Court's decision in Kimel v. Florida Board of Regents.²⁸ LDPSC disagrees, which it must, arguing that Kimel implicitly overruled Coolbaugh.

In Neinast, we struck down certain regulations promulgated by the Attorney General of the United States, which prohibited the charging of fees for handicapped parking placards, as beyond the power of Congress to abrogate state sovereign immunity, and a fortiori beyond the Attorney General's delegated legislative authority.²⁹ Before deciding the case on those grounds, we stated that "circuit precedent bars our consideration of whether the ADA as a whole exceeds Congress's power to abrogate under § 5."³⁰

Neinast was decided after Kimel, and therefore the plaintiffs argue that Kimel does not affect Coolbaugh. The plaintiffs misread Neinast. Anticipating the tightening in Garrett, we noted that Kimel "possibly suggests a more vigorous application of the congruence and proportionality test than the Coolbaugh court gleaned from City of Boerne."³¹ Neinast did not need to go further and reach the validity of the statute, because it concluded that the regulations at issue did not validly abrogate state sovereign immunity. The narrowness of Neinast reflected the reality that it ought to wait for Garrett.³²

Turning now to Kimel and Garrett, we conclude that the analysis in these cases undercuts our approach in Coolbaugh. As a result, we are persuaded that the Supreme Court has effectively overruled Coolbaugh.

D

To determine whether the ADA was a valid exercise of the § 5 power, Coolbaugh first examined the scope of the constitutional right, repairing to City of Cleburne v. Cleburne Living Center, Inc.³³ Coolbaugh did so because in Cleburne the Court held unconstitutional under the Equal Protection Clause the refusal of a local government to grant a special use permit for the operation of a group home for the mentally retarded. Significantly, the Court specifically refused to grant to disabled persons "suspect class" status.³⁴ Since then, courts have universally applied the "rational basis" standard to classifications involving physical disabilities.³⁵

Some have read Cleburne to prohibit all state decisionmaking based upon animus against a particular group,³⁶ a view that Garrett rejected.³⁷ Coolbaugh deployed the rational basis standard,³⁸ but Garrett further refined the test:

Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, as long as their actions towards such individuals are rational .... If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.³⁹

In sum, the Court engaged in a more searching analysis of the scope of the Equal Protection right, but that enterprise exposes no deficiency of Coolbaugh. Rather, its bite was elsewhere.

Coolbaugh then applied City of Boerne to the ADA, insisting upon "a congruence and proportionality between the injury to be prevented or remedies and the means adopted to that end."⁴⁰ As instructed by City of Boerne, Coolbaugh looked to the findings Congress made when adopting the ADA to decide first the magnitude of the problem Congress sought to remedy. This analysis did not distinguish state discrimination from private or general societal discrimination. Instead, Coolbaugh observed only that "the extensive record compiled in the legislative history fully supports Congress' detailed findings of a serious and pervasive problem of discrimination against the disabled."⁴¹

The Supreme Court soon thereafter again narrowed the § 5 grant of authority to Congress, first in Florida Prepaid Postsecondary Educational Expense Board v. College Savings Bank,⁴² and then in Kimel and Garrett. In these cases, the Court directed us to look to specific findings of unconstitutional discrimination by States in a § 5 abrogation analysis.⁴³ Additionally, in Garrett, the Court delineated the types of state unconstitutional action that can form the foundation upon which Congress uses its § 5 remedial power. Garrett insisted that Congress identify unconstitutional discrimination by the States, not local governments,⁴⁴ which do not benefit from the protections of the Eleventh Amendment and therefore cannot form the basis for an exercise of the § 5 power to abrogate state sovereign immunity.⁴⁵ Thus Coolbaugh's analysis of the legislative role has been preempted by...