Wessel v. Glendening, No. 00-6634.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtWilkins
Citation306 F.3d 203
PartiesDwayne E. WESSEL, Plaintiff-Appellant, United States of America, Intervenor, and Winston Lloyd, Plaintiff, v. Parris N. GLENDENING, Governor, Sued in his official and individual capacity; Stuart O. Simms, Secretary, Sued in his official and individual capacity; William W. Sondervan, Ed.D., Commissioner, Sued in his official and individual capacity; Patricia Cushwa, Chairperson, Sued in her official and individual capacity; Maceo Williams, Commissioner, Sued in his official and individual capacity; Frank Pappas, Commissioner, Sued in his official and individual capacity; Alexander Francis, Warden, Sued in his official and individual capacity; Sandra Boose, Facility Administrator, Sued in her official and individual capacity; Sergeant Dorn, Sued in his individual capacity, Defendants-Appellees, and Disability Rights Section, Civil Rights Division, United States Department of Justice, Sued in its official capacity, Defendant.
Decision Date26 September 2002
Docket NumberNo. 00-6634.
306 F.3d 203
Dwayne E. WESSEL, Plaintiff-Appellant,
United States of America, Intervenor, and
Winston Lloyd, Plaintiff,
v.
Parris N. GLENDENING, Governor, Sued in his official and individual capacity; Stuart O. Simms, Secretary, Sued in his official and individual capacity; William W. Sondervan, Ed.D., Commissioner, Sued in his official and individual capacity; Patricia Cushwa, Chairperson, Sued in her official and individual capacity; Maceo Williams, Commissioner, Sued in his official and individual capacity; Frank Pappas, Commissioner, Sued in his official and individual capacity; Alexander Francis, Warden, Sued in his official and individual capacity; Sandra Boose, Facility Administrator, Sued in her official and individual capacity; Sergeant Dorn, Sued in his individual capacity, Defendants-Appellees,

Page 204

and
Disability Rights Section, Civil Rights Division, United States Department of Justice, Sued in its official capacity, Defendant.
No. 00-6634.
United States Court of Appeals, Fourth Circuit.
Argued June 5, 2002.
Decided September 26, 2002.

Page 205

ARGUED: Neal Lawrence Walters, University of Virginia School of Law Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Kevin Kendrick Russell, Appellate Section, Civil Rights Division, United States Department of Justice, Washington, D.C., for Intervenor. David Phelps Kennedy, Assistant Attorney General, Baltimore, Maryland, for Appellees. ON BRIEF: Ralph F. Boyd, Jr., Assistant Attorney General, Jessica Dunsay Silver, Seth M. Galanter, Appellate Section, Civil Rights Division, United States Department of Justice, Washington, D.C., for Intervenor. J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Maryland, for Appellees.

Page 206

Before WILKINS, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Judge TRAXLER joined. Judge KING wrote a dissenting opinion.

OPINION

WILKINS, Circuit Judge.


Dwayne E. Wessel brought this action pursuant to Part A of Title II of the Americans with Disabilities Act (ADA) of 1990, see 42 U.S.C.A. §§ 12131-12134 (West 1995).1 The district court dismissed the action, concluding that Wessel's claim was barred by the State's sovereign immunity under the Eleventh Amendment to the United States Constitution. We affirm.

I.

In March 1999, Wessel was committed to the custody of the Maryland Division of Corrections. Under Maryland law, all inmates are awarded a certain number of good conduct credits at the outset of their sentences; inmates can earn additional credits by participating in institutional work or education programs, or by participating in special projects. Completing a "boot camp" program is one way to earn special project credits.

Upon his incarceration, Wessel was assigned to a boot camp program, but he was deemed medically unqualified for the program and was transferred to another correctional facility shortly thereafter. He was then offered employment as a yard worker but was disqualified when he told prison officials that his feet hurt and that he could not do the work. Subsequently, Wessel was placed on non-work status and transferred to the Jessup Pre Release Unit (Jessup).

Wessel filed this action pro se while incarcerated at Jessup, claiming that the State violated his rights under the ADA by failing to provide him, as a disabled inmate, with opportunities to earn diminution credits on an equal basis with non-disabled inmates.2 See 42 U.S.C.A. § 12132 (providing 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"). The district court dismissed the action upon the State's motion, holding that Congress, in enacting Title II of the ADA, did not validly abrogate the states' Eleventh Amendment immunity from suits for damages.3

Wessel appealed pro se, and we appointed counsel and calendared the case for oral argument. The United States intervened pursuant to 28 U.S.C.A. § 2403(a) (West 1994) and filed a brief and presented argument in support of the validity of abrogation.

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II.

The Eleventh Amendment prohibits the extension of "[t]he Judicial power of the United States" 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. Const. amend. XI. Although the text of the Eleventh Amendment does not address suits for damages against an unconsenting state by its own citizens, it is well settled that "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).4

Congress may abrogate immunity under certain circumstances. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Determining whether Congress has done so requires a court to consider two questions: first, "whether Congress has `unequivocally expresse[d] its intent to abrogate the immunity'; and second, whether Congress has acted `pursuant to a valid exercise of power.'" Id. (alteration in original) (citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). Whether Congress has abrogated the states' sovereign immunity is a legal question, and as such is subject to de novo review, see United States v. Martin, 215 F.3d 470, 472 (4th Cir.2000).

A.

Before conducting the abrogation analysis, we first address the scope of our analysis. The Government, relying on our decision in Brown v. North Carolina Division of Motor Vehicles, 166 F.3d 698 (4th Cir.1999), asserts that our consideration of the abrogation question should be limited to the particular context of this litigation, i.e., the application of Title II to state prisons. We conclude that the rule announced in Brown, which requires a court to consider the narrowest form of the constitutional question presented, does not apply here in the manner suggested by the Government.5

In Brown, a class of disabled individuals challenged a fee charged by North Carolina for the issuance of handicapped parking placards, maintaining that the fee violated a regulation promulgated pursuant to Title II. This court concluded that when "determining whether Eleventh Amendment immunity is abrogated in a case involving a regulation," a court should "examine the legality [only] of the specific statute and regulation whose asserted violation by state government gave rise to the claim for relief in federal court." Id. at 705.

The State urges us to hold that Brown was effectively overruled by Board of Trustees v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), which held that Congress did not validly abrogate sovereign immunity when it enacted Title I of the ADA. We conclude, however, that the rule in Brown, which was adopted in the context of litigation challenging a particular regulation, does not apply here, where the claim arises directly under Title II. The mere fact that this litigation concerns

Page 208

Title II itself, and not a regulation, is alone adequate to establish the inapplicability of Brown. As discussed above, in Brown we admonished that abrogation review should focus on the narrowest provision on which liability may be based. Here, that provision is Title II. What the Government proposes is not limiting our abrogation analysis to a particular provision, but rather to a particular defendant. This is not an application of Brown; it is an extension of it. Moreover, such an extension is contraindicated by the language of Brown. The regulation challenged there prohibited all public entities from levying surcharges to cover the cost of compliance with the ADA, and we conducted the abrogation analysis in precisely those terms, rather than limiting our inquiry to surcharges imposed by state motor vehicle departments. See Brown, 166 F.3d at 707 (noting lack of congressional record regarding unconstitutional state surcharges for handicapped programs).

We further conclude that it would be improper to extend Brown as the Government would have us do. Title II prohibits discrimination by any "public entity." 42 U.S.C.A. § 12132. The term "public entity" is defined to include states. See id. § 12131(1)(A). Significantly, nowhere does Title II specifically name prisons or any other arm of the state. Thus, absent judicial redrafting of the statute, there is no narrower constitutional question to address. Cf. United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) ("Statutes should be construed to avoid constitutional questions, but this interpretive canon is not a license for the judiciary to rewrite language enacted by the legislature.").

B.

Having concluded that we must conduct the abrogation analysis as to the whole of Part A of Title II, we now turn to consideration of that issue. The question of whether Congress adequately expressed its intent to abrogate is answered by the text of the statute. The ADA explicitly provides that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court ... for a violation of" the ADA. 42 U.S.C.A. § 12202 (West 1995). This provision unequivocally expresses Congress' intent to abrogate. See Brown, 166 F.3d at 705.

C.

We next must decide whether Congress properly exercised its power to abrogate. This inquiry is begun by ascertaining the basis for Congress' abrogation. See Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. In the ADA, Congress asserted its intent "to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment ..., in order to address the major areas of discrimination faced day-to-day by people with...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 1 Mayo 2006
    ...1326, 1331 (4th Cir.1974) (qualified immunity "has no application to a suit for declaratory or injunctive relief"); Wessel v. Glendening, 306 F.3d 203, 207 n. 4 (4th Cir.2002) ("The protection of the Eleventh Amendment does not extend to suits seeking injunctive relief from state officials ......
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  • Nelson v. Com. of Penn. Dept. of Public Welfare, No. CIV.A. 99-CV-5508.
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    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 9 Diciembre 2002
    ...the Eleventh Amendment insofar as Title II applies to cases involving a constitutional violation by the state); Wessel v. Glendening, 306 F.3d 203 (4th Cir.2002) (holding Congress did not validly abrogate the Eleventh Amendment when it enacted Title II); Reickenbacker v. Foster, 274 F.3d 97......
  • Atwood v. Vilsack, No. 4:02 CV 90359.
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    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • 30 Septiembre 2004
    ...281 F.3d 776 (8th Cir.2002) (holding that Alsbrook bars claims against states for violation of Title II); see also Wessel v. Glendening, 306 F.3d 203 (4th Cir.2002) (holding Congress did not validly abrogate Eleventh Amendment immunity of states when it enacted Page 1001 II of the Americans......
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18 cases
  • South Carolina State Bd. v. F.T.C., No. 04-2006.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 1 Mayo 2006
    ...1326, 1331 (4th Cir.1974) (qualified immunity "has no application to a suit for declaratory or injunctive relief"); Wessel v. Glendening, 306 F.3d 203, 207 n. 4 (4th Cir.2002) ("The protection of the Eleventh Amendment does not extend to suits seeking injunctive relief from state officials ......
  • Nelson v. Com. of Penn. Dept. of Public Welfare, No. CIV.A. 99-CV-5508.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 9 Diciembre 2002
    ...the Eleventh Amendment insofar as Title II applies to cases involving a constitutional violation by the state); Wessel v. Glendening, 306 F.3d 203 (4th Cir.2002) (holding Congress did not validly abrogate the Eleventh Amendment when it enacted Title II); Reickenbacker v. Foster, 274 F.3d 97......
  • Atwood v. Vilsack, No. 4:02 CV 90359.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • 30 Septiembre 2004
    ...281 F.3d 776 (8th Cir.2002) (holding that Alsbrook bars claims against states for violation of Title II); see also Wessel v. Glendening, 306 F.3d 203 (4th Cir.2002) (holding Congress did not validly abrogate Eleventh Amendment immunity of states when it enacted Page 1001 II of the Americans......
  • Chase v. Baskerville, Civil Action No. 3:04CV759-HEH.
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    • 2 Agosto 2007
    ...Pinchak, 401 F.3d 184, 192-93 (3d Cir.2005), rehearing granted and judgment vacated by 412 F.3d 500 (3d Cir.2005)4; Wessel v. Glendening, 306 F.3d 203, 214 (4th Cir.2003), ("Title II thus requires far more than does the Constitution.") overruled on other grounds by Lane, 541 U.S. 509, 124 S......
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