Thompson v. Colorado

• Decision Date: 07 August 2001
• Docket Number: No. 99-1045.,99-1045.
• Citation: 278 F.3d 1020
• Parties: Phoebe THOMPSON, Dean Ecoff, and Marcia E. Wade, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. State of COLORADO, Defendant-Appellant. United States of America, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

278 F.3d 1020

Phoebe THOMPSON, Dean Ecoff, and Marcia E. Wade, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. State of COLORADO, Defendant-Appellant United States of America, Intervenor.

No. 99-1045.

United States Court of Appeals, Tenth Circuit.

August 7, 2001.

As Amended on Denial of Rehearing and Rehearing En Banc October 9, 2001.

COPYRIGHT MATERIAL OMITTED

Stephen R. Senn, Peterson & Myers, P.A., Lakeland, FL (J. Davis Connor, Peterson & Myers, P.A., Lakeland, FL; Robert Antonello, Robert G. Fegers, Antonello, Fegers & CEA, Winter Haven, FL; Glen F. Gordon, John A. Purvis, William R. Gray, Purvis, Gray & Gordon, LLP, Boulder, CO, with him on the briefs), for Plaintiffs-Appellees.

Paul Farley, Special Assistant Attorney General, State of Colorado, (Ken Salazar, Attorney General, State of Colorado, with him on the briefs), Denver, CO, for Defendant-Appellant.

Jessica Dunsay Silver, Seth M. Galanter, Attorneys, Civil Rights Division, Department of Justice, Washington, DC, filed briefs on behalf of the Intervenor.

Before BRISCOE, Circuit Judge, REAVLEY, Senior Circuit Judge,^* and MURPHY, Circuit Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiffs-Appellees brought a class action suit against Defendant-Appellant State of Colorado ("Colorado"). Plaintiffs claimed that the fee charged by Colorado for handicapped parking placards violated the Americans with Disabilities Act of 1990 ("ADA") and implementing regulations. After stipulating to various facts, both parties moved for summary judgment. In its motion for summary judgment, Colorado argued that Plaintiffs' claims were barred by the Eleventh Amendment. The district court granted Plaintiffs' motion for summary judgment and denied Colorado's motion for summary judgment. Colorado has appealed the district court's decision; jurisdiction to consider Colorado's appeal arises under 28 U.S.C. § 1291. Because Colorado is entitled to Eleventh Amendment immunity, this court vacates the order of the district court granting Plaintiffs' motion for summary judgment and denying Colorado's motion for summary judgment.

II. FACTS AND PROCEDURAL HISTORY

Under Colorado law, a "person with a disability" may apply for a special license plate or placard. See Colo.Rev.Stat. § 42-3-121(2)(a). The license plate and the placard allow the disabled person to park in designated handicap parking spaces. See id. § 42-4-1208(3)(a). The special license plates are supplied to the disabled at the same cost as standard license plates. See id. § 42-3-121(2)(a)(I). In order to receive a placard, however, a fee must be paid. See id. § 42-3-121(2)(d). The fee is not to exceed the actual cost of issuing the placard; at the time of appellate briefing the fee was $2.25. See id.

Plaintiffs brought a class action suit against Colorado challenging the imposition of the placard fee. Plaintiffs claimed that the placard fee violated Title II of the ADA and the implementing regulations promulgated by the Department of Justice. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C § 12132. The term "public entity" includes "any State or local government" and "any department, agency, special purpose district, or other instrumentality of a State or States or local government." Id. § 12131(1). Plaintiffs also relied on 28 C.F.R. § 35.130(f), a regulation promulgated by the Department of Justice for the purpose of implementing Title II of the ADA. See 28 C.F.R. § 35.101. Section 35.130(f) provides as follows:

A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the [ADA] or this part.

Plaintiffs requested two forms of relief in their complaint: (1) a declaration that it is unlawful for Colorado to require payment for the parking placards and a subsequent injunction preventing Colorado from charging these fees in the future, and (2) reimbursement of previous fees paid by Plaintiffs for the placards after passage of the ADA.¹ Colorado was the only defendant named in the complaint.

In its answer, Colorado claimed, inter alia, that it was entitled to immunity under the Eleventh Amendment. After stipulating to many relevant facts, both parties moved for summary judgment. Although Plaintiffs' complaint sought both injunctive relief and reimbursement for past fees paid, Plaintiffs' motion for summary judgment was only for declaratory and injunctive relief.

The cross motions for summary judgment were referred to a magistrate judge. The magistrate judge concluded that (1) the placard fee charged by Colorado violated Title II of the ADA and its implementing regulations; (2) Colorado was not entitled to Eleventh Amendment immunity; and (3) Title II of the ADA does not violate the Tenth Amendment. The magistrate judge thus recommended that Plaintiffs' motion for summary judgment be granted, that Colorado's motion for summary judgment be denied, and that a schedule be set for certification of the plaintiff class claiming reimbursement of fees paid to Colorado for placards.

The district court adopted the magistrate judge's recommendations over Colorado's objections. Colorado appealed to this court. After oral argument, this court formally abated the case following the Supreme Court's grant of certiorari in Florida Department of Corrections v. Dickson. See 528 U.S. 1132, 120 S.Ct. 976, 145 L.Ed.2d 926 (2000). The Dickson case settled, however, and this case was then reactivated. See Fla. Dep't of Corr. v. Dickson, 528 U.S. 1184, 120 S.Ct. 1236, 145 L.Ed.2d 1131 (2000). This court further delayed deciding this case, however, in order to await the outcome of Board of Trustees of the University of Alabama v. Garrett and to allow the parties and the United States as intervenor to file supplemental briefs; the Supreme Court decided Garrett on February 21, 2001. See 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).

III. DISCUSSION

On appeal, Colorado argues that it is entitled to Eleventh Amendment immunity from Plaintiffs' suit. Under circuit precedent, a defendant's assertion of Eleventh Amendment immunity calls into question the subject matter jurisdiction of the district court. See Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.1999), overruled on other grounds by Garrett, 121 S.Ct. at 967-68. But see Idaho v. Coeur d'Alene, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (stating that the Eleventh Amendment "enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction"); Cisneros v. Wilson, 226 F.3d 1113, 1136, 1137 (10th Cir.2000) (Kelly, J., concurring in part and dissenting in part) (arguing that "[w]ere the Eleventh Amendment truly jurisdictional, a court would not be free to ignore it" and stating that the court should not have reached the Eleventh Amendment issue), majority holding overruled on other grounds by Garrett, 121 S.Ct. at 967. Questions regarding jurisdiction must generally be answered before turning to the merits of a case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting the doctrine of hypothetical jurisdiction). The Supreme Court has held that the issue of whether a statute provides for suits against the states may be addressed before examining a defendant's claim of Eleventh Amendment immunity. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 778-79, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Colorado, however, concedes that Title II of the ADA contemplates suits by private individuals against the states. Thus, Vermont Agency is not applicable to this case and this court must resolve whether Colorado is entitled to Eleventh Amendment immunity before it can address whether Plaintiffs have stated a valid claim under Title II and its implementing regulations.

The Eleventh Amendment provides:

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.

The Eleventh Amendment has been understood as "evidencing and exemplifying" a concept of sovereign immunity implicit in the Constitution broader than the explicit language of the amendment might suggest. Coeur d'Alene, 521 U.S. at 267-68, 117 S.Ct. 2028; see also Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). Thus, although the explicit language of the Eleventh Amendment applies only to suits in federal court against a state by citizens of another state, immunity has been extended to suits in federal court by citizens against their own state, such as the present suit. See Garrett, 121 S.Ct. at 962; Hans v. Louisiana, 134 U.S. 1, 15-21, 10 S.Ct. 504, 33 L.Ed. 842 (1890); cf. Alden v. Maine, 527 U.S. 706, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (holding that states possess sovereign immunity from federal suits in state courts).

Certain exceptions to Eleventh Amendment immunity have been recognized. A state can waive its Eleventh Amendment immunity and consent to be sued. See Coeur d'Alene, 521 U.S. at 267, 117 S.Ct. 2028. There has been no suggestion in this case, however, that Colorado consented to suit under Title II of the ADA. In addition, the Court has often found federal jurisdiction in suits against state officials seeking prospective injunctive relief. See Seminole Tribe...