Meyers Ex Rel. Benzing v. Texas

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT June 29, 2006

_______________________ Charles R. Fulbruge III
No. 02-50452
______________________ Clerk

MARJORIE MEYERS, by Next Friend Edgar C. Benning, on behalf of herself and all others
similarly situated; HELEN ELKIN, on behalf of herself and all others similarly situated; RUTH H.
DAVIS, on behalf of herself and all others similarly situated; PHILLIP GREENBERG, on behalf
of himself and all others similarly situated,

Plaintiffs-Appellants,

VERSUS

STATE OF TEXAS; TEXAS DEPARTMENT OF TRANSPORTATION; WILLIAM G.
BURNETT, Executive Director of the Texas Department of Transportation,

Defendants-Appellees.
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Appeal from the United States District Court
For the Western District of Texas
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ON PETITION FOR REHEARING

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition

for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the

court having requested that the court be polled on Rehearing En Banc (FED R. APP. P. and 5TH CIR.

R. 35), the Petition for Rehearing En Banc is DENIED.
 The narrow holding in the instant case is that, under the Supreme Court's decision in Lapides

v. Bd. of Regents of Georgia, 535 U.S. 613, 122 S.Ct. 1640 (2002), when a State removes to federal

court a private state court suit based on a federal-law claim, it invokes federal jurisdiction and thus

waives its unqualified right to object peremptorily to the federal district court's jurisdiction on the

ground of state sovereign immunity. However, that waiver does not affect or limit the State's ability

to assert whatever rights, immunities or defenses are provided for by its own sovereign immunity law

to defeat the claims against the State finally and on their merits in the federal courts. In sum, Texas

may assert its state sovereign immunity as defined by its own law as a defense against the plaintiffs’

claims in the federal courts, but it may not use it to defeat federal jurisdiction or as a return ticket

back to the state court system. Additionally, the panel opinion does not reach or decide, but remands

for further proceedings, the issues of whether the ADA Title II on its face or as applied

constitutionally abrogates the State's sovereign immunity; whether the plaintiffs failed to state a claim

based on a violation of Title II or the regulation; whether the regulation sued upon is invalid under

Chevron USA Inc v. NRDC, 467 US 837, 104 S.Ct. 2778 (1984); and whether the Commerce Clause

authorizes the enactment of ADA Title II.

IT IS SO ORDERED.