T.W. v. New York State Board of Law Examiners

• Decision Date: 28 April 2021
• Docket Number: No. 19-4136,August Term 2020,19-4136
• Citation: 996 F.3d 87
• Parties: T.W., Plaintiff-Appellee, v. NEW YORK STATE BOARD OF LAW EXAMINERS, Diane Bosse, John J. McAlary, Bryan Williams, Robert McMillen, E. Leo Milonas, Michael Colodner Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

996 F.3d 87

T.W., Plaintiff-Appellee,

v.NEW YORK STATE BOARD OF LAW EXAMINERS, Diane Bosse, John J. McAlary, Bryan Williams, Robert McMillen, E. Leo Milonas, Michael Colodner Defendants-Appellants.

No. 19-4136

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: October 8, 2020

Decided: April 28, 2021

For Plaintiff-Appellee: Michael Steven Stein (Mary Vargas, on the brief) Stein & Vargas, LLP, New York, NY; Jo Anne Simon, Jo Anne Simon, P.C., New York, NY.

For Defendants-Appellants: Joshua M. Parker, Assistant Solicitor General of Counsel, Steven C. Wu, Deputy Solicitor General, and Barbara D. Underwood, Solicitor General for Letitia James, Attorney General for the State of New York, New York, NY.

Before: Livingston, Chief Judge, Chin, Circuit Judge, Failla, Judge.¹

Debra Ann Livingston, Chief Judge:

T.W., a law school graduate, filed suit on June 10, 2016 in the Eastern District of New York against the New York Board of Law Examiners ("the Board" or "BOLE") asserting that the Board had violated Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act ("ADA") by allegedly discriminating against her in denying appropriate disability accommodations for the bar examination. The Board filed a motion to dismiss, arguing, in part, that it was immune from suit under the Eleventh Amendment because it was neither a recipient of federal funding, nor an operation of a "department, agency, special purpose district, or other instrumentality of a State or of a local government" that received federal funding. 29 U.S.C. § 794(b). The district court denied the Board's motion to dismiss and subsequent motion for reconsideration concluding that, while the Board itself had not received federal funding, the Board was a "program or activity" of a "department, agency, ... [or] instrumentality"—specifically, the Unified Court System ("UCS")—that had received funding.

We disagree. During the relevant period, from 2013 to 2015, the only entities within the New York judiciary to receive federal grant money were specialized courts, including drug treatment courts, family courts, domestic violence courts, and veterans treatment courts. These specialized courts are "part of" the "Courts of Original Jurisdiction," a separate part of the New York State court system for budgetary purposes. 29 U.S.C. § 794(b). We therefore conclude that the Courts of Original Jurisdiction, and not the entire state judiciary, is the relevant "program or activity receiving Federal financial assistance." Id. § 794(a). As a result, the Board would be amenable to suit under Section 504 if it were an "operation[ ] of" the Courts of Original Jurisdiction during the relevant period. Id. § 794(b). Because it is not, and because the Board does not itself receive any federal financial assistance, we hold that the Board is immune from suit under the Rehabilitation Act and accordingly reverse.

BACKGROUND

I. Factual Background²

T.W. is a Harvard Law School graduate who suffers from depression, anxiety, and ongoing complications from a severe head injury. While at Harvard, she received testing accommodations for her disabilities, including fifty-percent extra time on exams, stop-clock breaks, and separate testing facilities. When she signed up for the July 2013 New York bar examination, she requested these same testing accommodations, informing the New York State Board of Law Examiners "that she had been diagnosed with four impairments recognized by the DSM IV: panic disorder without agoraphobia, cognitive disorder, reading disorder, and amnesic disorder."³ Joint App'x 33.

The Board initially denied her request for any accommodation, but after she appealed the decision, the Board partly granted her accommodation requests, providing off-the-clock breaks and seating her in a smaller room, albeit with others receiving similar accommodations. T.W. did not pass the July 2013 bar exam. She alleges that she did not pass because "the Board did not grant her extra time or a separate room," and therefore she "could not complete large portions of the examination." Id. at 36. At the time T.W. received her results, she had started as a law clerk at a law firm, and she stated that "[f]ailing the bar examination was a major blow to [her] standing," that "[s]he no longer was seen as one of the ‘star’ young associates by the firm's partners," and that "just as her career was getting started, she was forced to schedule a significant period of leave time in order to study for the bar examination again, making it impossible for the firm to staff her on matters where she would have significant responsibility." Id. at 37.

T.W. signed up for the July 2014 exam and again requested the three accommodations that she had received at Harvard. This time, the Board granted her a different mix of accommodations—fifty percent extra time, seating in a room with others receiving similar accommodations, but no off-the-clock breaks. She again did not pass. As a matter of firm policy, her law firm terminated her from her job.

T.W. passed the bar examination on her third attempt in February 2015. "This time, the Board provided [her] with double time instead of 50 percent extra time," an accommodation she "repeatedly had requested in the alternative should the Board be unable to give her off-the-clock breaks along with 50 percent extra time." Id. at 38. The Board did not provide any stated reason for its change in accommodations. T.W. alleges that the Board's failure to provide her initially with the accommodations that she requested caused her to fail the bar exam twice and resulted in her inability to find employment comparable to the position she had held at her law firm. T.W. sued the Board, its chair, and members of the Board, alleging violations of the ADA, Section 504 of the Rehabilitation Act, and the New York City Human Rights Law ("NYCHRL"), seeking declaratory, compensatory, and injunctive relief.

II. Procedural History

In November 2016, the Board moved to dismiss T.W.’s complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), asserting, inter alia , that the district court lacked subject matter jurisdiction because Eleventh Amendment immunity barred T.W.’s ADA and Rehabilitation Act claims. In September 2017, the district court deferred ruling on the motion, permitting T.W. to conduct limited discovery into whether the Board had accepted federal funding during the relevant period. At the same time, T.W. "agreed to withdraw her claims under Title III of the ADA and the NYCHRL, and her individual capacity claims against the chair and members of the Board." Joint App'x 17. The only claims that remained were her allegations against the Board itself under Title II of the ADA and Section 504 of the Rehabilitation Act. On September 18, 2019, the district court denied the Board's motion to dismiss, holding that T.W.’s claims were not barred by sovereign immunity under the Eleventh Amendment.

In reaching its holding, the court first rejected T.W.’s argument that the Board had itself received federal funding during the relevant time period of 2013 to 2015. During this time, two state agencies—the New York State Commission for the Blind ("NYSCB") and the New York State Education Department's Adult Career and Continuing Education Services-Vocational Rehabilitation ("ACCES-VR")—had received federal funding and used that money to reimburse bar examinees with certain disabilities for fees that they incurred in registering for the bar exam. To receive reimbursement, bar examinees would first pay the Board for their bar registration fees, and then would submit proof of payment to NYSCB or ACCES-VR for reimbursement, which the agencies would pay directly to the examinees.

T.W. argued that even though the Board did not directly receive federal funding, it was the "intended recipient of federal funds," Dist. Ct. Dkt. 83 at 21, because NYSCB and ACCES-VR had received federal funding for the express purpose of reimbursing bar exam fees. The district court rejected this argument, stating that to waive immunity under § 504 of the Rehabilitation Act, the Board had to actually receive federal funds. Here, the district court remarked, "the funds used to pay [bar examination] fees are not federal funds because the reimbursement policy is a closed loop between the funding agency and the applicant—the federal funds never make their way into the Board's bank accounts; they are paid, after the fact, to the candidates when they apply for reimbursement." Special App'x 7. Because the Board had not received—directly or indirectly—any federal funds, it had not waived immunity under this reasoning.

The district court held, however, that the Board had waived its immunity pursuant to T.W.’s second argument, that the Board is "a ‘program or activity’ of a department or agency that itself accepts federal funds—in this case, New York's Unified Court System." Id. at 8. The court determined that "[u]nder state law, the Board is both administered and funded as part of New York's judicial branch, UCS." Id. at 12. Because UCS "voluntarily and knowingly chooses to accept federal funds for some of its programs," UCS had "waived its Eleventh Amendment immunity for ‘all of [its] operations,’ including the Board." Id.

Having found that T.W. could proceed on her claim under Section 504 of the Rehabilitation Act, the district court declined to reach the Board's argument that T.W.’s Title II ADA claim should be dismissed. See id. at 4 ("Because the same legal standards and remedies apply to claims under Title II of the ADA and the Rehabilitation Act, Plaintiff need only prevail on one of these two claims to survive Defendant's motion to dismiss."). This appeal followed, challenging the district court's holding that the Board is not entitled to immunity.

DISCUSSION

The Eleventh Amendment of the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to...