[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ DECEMBER 20, 2001
THOMAS K. KAHN
No. 98-6069 CLERK
________________________
D.C. Docket No. 97-00092-CV-AR-S
PATRICIA GARRETT,
Plaintiff-Appellant,
versus
THE UNIVERSITY OF ALABAMA
AT BIRMINGHAM BOARD OF TRUSTEES,
Defendant-Appellee,
THE UNITED STATES OF AMERICA,
Intervenor.
* * * * * * *
________________________
No. 98-6070
________________________
D.C. Docket No. 97-00092-CV-AR-S
MILTON ASH,
Plaintiff-Appellant,
versus
ALABAMA DEPARTMENT OF YOUTH SERVICES,
Defendant-Appellee,
THE UNITED STATES OF AMERICA,
Intervenor.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(December 20, 2001)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before ANDERSON, Chief Judge, RONEY, Circuit Judge, and COOK*, District
Judge.
PER CURIAM:
The Petition for Rehearing in this case is granted. In Garrett v. Univ. of Ala. at
Birmingham Bd. of Trs., 193 F.3d 1214 (11th Cir. 1999), this Court reversed the
decision of the district court in Garrett v. Bd. of Trs. of the Univ. of Ala. at
Birmingham, 989 F. Supp. 1409 (N.D. Ala. 1998), relying on this Circuit’s prior
decision in Kimel v. Fla. Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), rev’d, 528
U.S. 62 (2000), which had held that the American with Disabilities Act, 42 U.S.C. §
12101, et. seq. (ADA) was a valid exercise of Congress’ power under the 5th and 14th
Amendments to abrogate state immunity from lawsuits thereunder. The United States
Supreme Court then reversed, however, holding that as in its holding in Kimel,
_____________________
*
Honorable Julian Abele Cook, Jr., U.S. District Judge for the Eastern District of
Michigan, sitting by designation. 2
Congress had not acted pursuant to a valid grant of power when it attempted to so
abrogate the state’s immunity, and remanded the case to this Court. Bd. of Trs. of the
Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). Following the mandate of the Supreme
Court, we affirmed the decision of the district court both as to the ADA claim and the
claim under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Garrett v. Univ.
of Ala. at Birmingham Bd. of Trs., 261 F.3d 1242 (11th Cir. 2001).
In their Petition for Rehearing, the plaintiffs, noting that neither the district
court, this Court, nor the Supreme Court had addressed the issue, argue that
DEFENDANTS HAVE VOLUNTARILY WAIVED THEIR
ELEVENTH AMENDMENT IMMUNITY UNDER § 504 OF THE
REHABILITATION ACT BY THEIR RECEIPT OF FEDERAL
FINANCIAL ASSISTANCE CONDITIONED UPON SUCH A
WAIVER.
In the response requested by this Court, the defendants state that: “the panel
should grant a rehearing, vacate the Rehabilitation aspect of its previous decision, and
remand the plaintiff’s Rehabilitation Act claims to the district court.”
The defendants went on to explain that:
The district court’s order and opinion which opened the way
for the original appeal of this case did not address the
possibility that the plaintiffs’ Rehabilitation Act claims
might, or might not, be the source of jurisdiction via a
waiver of state immunity. It simply was not analyzed or
discussed; frankly, none of the parties presented much in the
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way of argument on the issue of waiver. In view of these
circumstances, the best course would be for this Court to
remand in order to allow the district court to analyze the
issue and, if it deems appropriate, to develop an evidentiary
record.
Therefore, we grant the Petition for Rehearing filed by the plaintiffs, vacate our
prior opinion reported at Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 261 F.3d
1242 (11th Cir. 2001) except to the extent that it affirms the district court decision that
Congress had not acted pursuant to a valid grant of power when it attempted to
abrogate the state’s immunity under the ADA and the Rehabilitation Act, and remand
the case to the district court to consider the argument that defendants have voluntarily
waived their Eleventh Amendment immunity under § 504 of the Rehabilitation Act by
their receipt of federal financial assistance conditioned upon such a waiver, and to
conduct such further proceedings as may be consistent with this decision.
The Suggestion for Rehearing En Banc is denied as moot.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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