Nieves-Marquez v. Commonwealth of PR

United States Court of Appeals
For the First Circuit

No. 02-2721

JOSHUA NIEVES-MÁRQUEZ; JESÚS NIEVES; LEONOR MÁRQUEZ,

Plaintiffs, Appellees,

v.

THE COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF EDUCATION OF THE
COMMONWEALTH OF PUERTO RICO, through its Secretary, Hon. César
Rey Hernández; ELSIE TRINIDAD; EDNA ROSA-COLÓN,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Lynch, and Howard,
Circuit Judges.

Eduardo A. Vera-Ramírez, with whom Eileen Landrón-Guardiola,
Anabelle Rodríguez, Secretary of Justice, and Ivonne Palerm-Cruz,
Deputy Secretary, were on brief, for appellants.
Alfredo Fernández-Martínez for appellees.
Kevin Russell, Attorney, Civil Rights Division, U.S.
Department of Justice, with whom Jessica Dunsay Silver, Attorney,
Civil Rights Division, U.S. Department of Justice, and R. Alexander
Acosta, Assistant Attorney General, were on brief, for the United
States as intervenor.

December 24, 2003
 LYNCH, Circuit Judge. Joshua Nieves-Márquez, a

developmentally delayed and hearing-impaired teenager who attends

public school in Puerto Rico, filed this federal lawsuit to compel

officers of the Department of Education of the Commonwealth of

Puerto Rico to provide him a sign language interpreter ordered for

him several months earlier by a hearing officer under the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §

1400 et seq. The suit asserted claims under IDEA; Title II of the

Americans with Disabilities Act (ADA), 42 U.S.C. § 1210 et seq.;

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; 42 U.S.C.

§ 1983; and two provisions of the Puerto Rico Civil Code.

In Puerto Rico, all public elementary schools are run by

the Commonwealth's Department of Education. The Department, which

receives millions of dollars in federal funding for special needs

students each year, chose not to appeal from the hearing officer's

order. Although the Department provided an interpreter for the

rest of that school year, it stopped providing one when Joshua

began the next school year, even though it conceded his continued

need for one. When his parents, his special education team, and

the superintendent of his school affirmed that need and requested

that an interpreter be provided promptly, the Department did not

respond.

When sued, the Commonwealth, the Department of Education,

and the individual defendants replied that the federal court lacked

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jurisdiction under the Eleventh Amendment. They also sought

dismissal of the case on grounds of untimeliness, exhaustion, and

lack of statutory standing, and said that the conditions for

preliminary injunctive relief had not been met. Unconvinced, the

trial court, after hearing evidence, granted the preliminary

injunction and denied the defendants' motion to dismiss.

The defendants appeal, challenging the court's grant of

a preliminary injunction and its denial of their motion to dismiss

based on Eleventh Amendment immunity. Forced to reach the Eleventh

Amendment question, we hold that the defendants waived any Eleventh

Amendment immunity, at least as to § 504 claims, by accepting

federal educational funding. Accordingly, we affirm.

I.

The procedural history of this case and evidence

presented at the preliminary injunction hearing before the district

court on October 8, 2002 is described below.

On August 14, 2001, Joshua Nieves-Márquez started second

grade at the María Bas de Vásquez School, a public school in

Bayamón, Puerto Rico. Joshua suffers from moderate to severe

bilateral hearing loss. He had just transferred to the María Bas

de Vásquez School, which serves mostly hearing students, from a

school for the deaf. He was twelve years old at the time and did

not know how to read.

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 In the summer before Joshua started second grade, his

parents, Jesús Nieves and Leonor Márquez, at the recommendation of

a teacher, requested a certified sign language interpreter to

assist Joshua in the classroom. Joshua's mother is a special

education teacher. After the school failed to provide an

interpreter, Joshua's parents filed an administrative complaint

under 20 U.S.C. § 1415(b)(6) against the Puerto Rico Department of

Education on November 6, requesting that Joshua be assigned his own

sign language interpreter. On December 4, 2001, the administrative

judge found that Joshua's need for a certified sign language

interpreter was "urgent" and ordered the school to provide one.

The Department of Education did not appeal the decision. During

the second semester of the second grade, from January through May

of 2002, Joshua shared a certified sign language interpreter with

another student in his class. Although Joshua's mother was not

fully satisfied with the sharing of an interpreter, she accepted

the situation.

When Joshua entered the third grade in August 2002,

however, the defendants no longer made a sign language interpreter

available to him. No advance notice of this change was given to

Joshua or his parents. On August 9, 2002, Joshua's parents

attended a "campo" meeting with specialists, teachers, and the

director of the school to analyze Joshua's special needs and the

services he required. As best we can tell, this was the annual

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team meeting and evaluation required under IDEA, 20 U.S.C. §

1414(d)(4)(A); the defendants have put forth no evidence otherwise.

The meeting participants agreed that Joshua needed an interpreter

for the third grade and that the need was urgent.

Joshua's mother notified the superintendent of María Bas

de Vásquez School of the situation in August after school started

and asked that a sign language interpreter be provided to her son.

He told her that he did not have one available but wrote a letter

on August 9 to defendant Edna Rosa-Colón, the director of the

Bayamón Region of the Department of Education. The letter stated

that "[w]e hope that [Joshua] can be helped to be able to solve

[his need for a sign language interpreter] as soon as possible and

permanently." Joshua's mother hand-delivered the letter to Rosa-

Colón's secretary on August 22. Joshua and his parents received no

response from the Department of Education and no explanation as to

whether it was taking steps to find an interpreter for Joshua.

On October 1, 2002, the plaintiffs filed a complaint in

federal district court against the Commonwealth of Puerto Rico; the

Puerto Rico Department of Education, through its Secretary, Cesár

Rey-Hernández; the director of the María Bas de Vásquez School,

Elsie Trinidad; and the director of the Bayamón Region of the

Department of Education, Rosa-Colón. The complaint sought a

preliminary and permanent injunction as well as compensatory and

punitive damages. On the same day that the complaint was filed,

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Joshua and his parents also moved for a temporary restraining order

and preliminary injunction requiring the immediate provision of a

sign language interpreter. The district court held an evidentiary

hearing on the motion on October 8, 2002.

At the evidentiary hearing, defense counsel admitted to

the district court that "we acknowledge [Joshua] needs . . . an

assistant to interpret for him beside[s] the interpretation that

the school teacher can do." Joshua's third-grade teacher testified

that she has only some basic knowledge of sign language and is not

a certified interpreter. Joshua, she testified, is quite deaf and

can only sometimes read lips and vocalize. At thirteen, he cannot

read and can write only basic words, such as "mom" and "bathroom."

Because the class has only nine students, the teacher tries to

communicate with Joshua face-to-face, but, in her view, Joshua

needs a sign language interpreter. She testified that, from what

she understood, her view was shared by the school director and

superintendent.

In addition, an audiologist testified that Joshua has

difficulty understanding words spoken to him. Based on his

evaluation of Joshua, he testified that even with a hearing aid,

Joshua would not be able to hear the teacher in most classroom

situations unless an FM system were available to transmit the sound

of the teacher's voice directly into his hearing aid. No FM system

was available in his classroom. The audiologist, who received

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referrals from the Department, further testified that the majority

of students with hearing loss of Joshua's type communicate much

better through sign language than through verbal communication and

lip reading.

Joshua's mother testified that his hearing loss has

retarded his learning. For the past five years, he has worn a

hearing aid, which his parents finally obtained after a series of

disputes with the Department. She testified that she transferred

Joshua from the school for the deaf before second grade because she

was aware that services at that school would end for Joshua when he

reached the age of twenty-one and she feared that he would never

learn to read or be prepared for the working world if he stayed

there.

On October 9, the defendants moved to dismiss the

plaintiffs' IDEA, ADA, and Rehabilitation Act claims based on

Eleventh Amendment immunity. Despite Ex parte Young, 209 U.S. 123

(1908), the defendants did not confine their motion to dismiss to

the plaintiffs' damages claims but requested that the case against

all defendants be dismissed in its entirety based on Eleventh

Amendment immunity.1 In addition, they moved to dismiss all four

1
Under Ex parte Young, 209 U.S. 123 (1908), the defendant
state officers were proper defendants for prospective injunctive
relief, but the Commonwealth or the Department qua Department were
not. Id. at 155-56, 159-60. The defendants have failed to brief
those distinctions at all. Since certain defendants are proper
parties, we do nothing further with the issue.

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federal claims on various other grounds, arguing (1) that the

plaintiffs were not "parties aggrieved" with statutory standing

under IDEA's right-to-sue provision, 20 U.S.C. § 1415(i)(2), and

such standing was necessary to sue under IDEA or any other federal

statute, (2) that the plaintiffs had failed to exhaust

administrative remedies under IDEA and thus could not sue under

IDEA or any other federal statute, and (3) that the plaintiffs had

brought their claims after the statute of limitations had expired.

The defendants also opposed the plaintiffs' motion for a temporary

restraining order and preliminary injunction on the ground that the

lack of a sign language interpreter would not cause Joshua

irreparable harm.

The court did not rule immediately. In the intervening

three weeks, the defendants failed to produce a sign language

interpreter for Joshua. On November 1, the court granted the

plaintiffs' motion for a preliminary injunction and ordered the

defendants to provide Joshua with a certified sign language

interpreter within twenty days. It found that the plaintiffs had

a substantial likelihood of success on their ADA, Rehabilitation

Act, and § 1983 claims because the defendants had not disputed that

Joshua was a qualified individual with a disability or that he

needed a sign language interpreter to function effectively in

class. It also found a potential for irreparable harm to Joshua's

education. Finally, it concluded that because of the potential

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harm to Joshua's education, the balance of hardships and the public

interest weighed in favor of preliminary injunctive relief.

In the same opinion, the district court also ruled on the

defendants' motion to dismiss. First, it held that Eleventh

Amendment immunity did not bar the ADA and Rehabilitation Act

damages claims. Second, it dismissed the plaintiffs' IDEA claim,

reasoning that because Joshua and his parents had prevailed at the

administrative level, they were not aggrieved by the administrative

decision, and hence lacked statutory standing as "parties

aggrieved" under IDEA's right-to-sue provision. It did not,

however, dismiss the ADA, Rehabilitation Act, and § 1983 claims

because it found that IDEA allows plaintiffs to sue under other

causes of action created by federal statutes even if they were not

parties aggrieved under IDEA. Third, the court found that,

although the defendants were correct that IDEA requires plaintiffs

suing under other federal statutes to exhaust IDEA administrative

remedies if the suit seeks relief available under IDEA, the

plaintiffs had done so by going through the administrative process

in November 2001. Finally, the court held that the plaintiffs'

claims were not time-barred, regardless of whether the statute of

limitations was one year (as argued by the plaintiffs) or thirty

days (as argued by the defendants), because the limitations period

for Joshua's claims was tolled until he reached the age of

majority.

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 On November 27, the defendants brought this interlocutory

appeal, challenging both the preliminary injunction and the denial

of their motion to dismiss the plaintiffs' damages claims based on

Eleventh Amendment immunity.

II.

A. Appellate Jurisdiction Over Grant of Preliminary Injunction

This court has jurisdiction under 28 U.S.C. § 1292(a)(1)

to hear an interlocutory appeal from the grant or denial of a

preliminary injunction. Tidewater Oil Co. v. United States, 409

U.S. 151, 153 (1972).

B. Preliminary Matters: IDEA Cause of Action, Exhaustion, and
Timeliness

Injunctive relief, of course, is available only if the

plaintiffs have stated a valid cause of action; otherwise, there is

no probability of success. The district court, over the

plaintiffs' objection, dismissed the IDEA claim but found that

plaintiffs could go forward with their ADA and Rehabilitation Act

claims. We may affirm the judgment on any ground supported by the

record. Greenless v. Almond, 277 F.3d 601, 605 (1st Cir. 2002).

We address first the IDEA claim for injunctive relief.

1. "Parties Aggrieved" Under IDEA

The district court held that Joshua and his parents do

not have statutory standing as "parties aggrieved" under IDEA's

right-to-sue provision, 20 U.S.C. § 1415(i)(2). We conclude

otherwise.

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 Section 1415(i)(2) provides that "[a]ny party aggrieved

by the findings and decision made [in the final stage of the due

process hearings] . . . shall have the right to bring a civil

action . . . in a district court of the United States." The

question here is whether this language permits plaintiffs who were

successful before the hearing officer to sue when the school system

neither appealed from nor complied with the final administrative

order and all parties agree on the continued need for services.

The district court found that Joshua and his parents were

not "aggrieved" because they had prevailed at the administrative

hearing. The Fourth Circuit has concluded that plaintiffs in

similar circumstances lacked statutory standing under the analogous

provision of IDEA's predecessor statute, the Education for All

Handicapped Children Act (EHA). Robinson v. Pinderhughes, 810 F.2d

1270, 1275 (4th Cir. 1987). The Third Circuit has declined to

reach the question under IDEA. Jeremy H. v. Mount Lebanon Sch.

Dist., 95 F.3d 272, 278 & n.10 (3d Cir. 1996). Both courts, noting

the lack of a separate enforcement provision in IDEA and the EHA,

chose to imply a cause of action under 42 U.S.C. § 1983.

We conclude that Congress could not have intended to

leave plaintiffs without an IDEA statutory remedy when they succeed

before the hearing officer and the school system does not appeal

the administrative decision but simply fails to fulfill a

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continuing obligation to provide services.2 Statutory phrases must

be read not in isolation but in light of the statute's overall

structure and intent. United States v. Morton, 467 U.S. 822, 828

(1984). Congress could not have intended for a school system to be

in a better position under IDEA when it refuses to comply with a

final administrative order and its continuing obligations than when

it exercises its statutory right to appeal from the order. Where

the school system exercises its right to appeal, the court is

empowered by IDEA to issue injunctive relief. See Manchester Sch.

Dist. v. Crisman, 306 F.3d 1, 4 & n.3 (1st Cir. 2002) (hearing

appeal by school district); Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1, 13 (1993) (upholding preliminary injunctive

relief providing a deaf child with a sign language interpreter).

It cannot be that a court is powerless under IDEA to issue

injunctive relief when the school system neither appeals from nor

complies with a valid administrative order and its continuing

obligations. That would open a gaping hole in IDEA's coverage. It

would create incentives for school systems to drag out the

2
At oral argument, the defendants stated that the
plaintiffs would not be without a remedy because they could seek a
writ of mandamus from the state court to enforce the administrative
order. This is a concession that the order had continuing effect
in these circumstances. Moreover, IDEA expressly allows plaintiffs
to seek relief in a federal forum. See 20 U.S.C. § 1415(i)(2)(A)
("[A]ction may be brought in any State court of competent
jurisdiction or in a district court of the United States . . . .").
And it is far from clear from the defendants' summary presentation,
without briefing, that mandamus would be available in the Puerto
Rico courts.

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administrative process, not to appeal administrative orders, not to

announce their intentions to refuse to comply with those orders,

and generally not to comply.

Such a result would undercut a number of IDEA's statutory

policies. It would render virtually meaningless the guarantee of

a free appropriate public education (FAPE). 20 U.S.C. § 1415(a).

It would undercut the integrity of the administrative process,

which parties are required to exhaust. See § 1415(i)(2)(A);

Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002).

It would be contrary to Congress's instruction that the

administrative order be final unless appealed in a civil action.

§ 1415(i)(1). By undermining the finality of administrative

orders, it would impact the "stay put" provisions of IDEA, which

specify the conditions under which the educational placement of a

child must be maintained, § 1415(j), and when such placement may be

changed, § 1415(k)(7). And the defendants' position would produce

long delays, contrary to IDEA's policies favoring prompt resolution

of disputes in order to expedite the provision of FAPE to children

who may be at a formative stage of their intellectual development.

Amann v. Town of Stow, 991 F.2d 929, 932 (1st Cir. 1993).3

3
The lack of a clause in IDEA that specifically provides
for judicial enforcement of administrative orders supports rather
than undercuts our analysis. The lack of an enforcement clause
shows Congress's intent to reinforce the administrative scheme and
the requirement that administrative remedies be exhausted. Our
result also reinforces that scheme.

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 We adopt the reading of "parties aggrieved" as

encompassing IDEA plaintiffs, such as Joshua and his parents, who

are aggrieved by the school system's failure to appeal from and to

comply with the hearing officer's continuing, valid, and final

order.4 In reaching this result, we read the "parties aggrieved"

language in light of the clear statutory commands described above.

2. Exhaustion of Administrative Remedies

The defendants urge us to conclude that the plaintiffs'

federal claims are barred because of their failure to exhaust IDEA

administrative remedies.5 The defendants argue that although the

4
We leave open the question whether a cause of action
could also be implied under 42 U.S.C. § 1983. The Supreme Court
held that IDEA's predecessor statute, the EHA, created a
comprehensive remedy that barred application of § 1983. Smith v.
Robinson, 468 U.S. 992, 1009 (1984). But Congress amended IDEA in
1986 in response to Smith, adding 20 U.S.C. § 1415(l), which
provides that "[n]othing in [IDEA] shall be construed to restrict
or limit the rights, procedures, and remedies available under . . .
other Federal laws protecting the rights of children with
disabilities." Other circuits have read this as overturning Smith
and allowing IDEA-based § 1983 claims. See, e.g., Susan N. v.
Wilson Sch. Dist., 70 F.3d 751, 763 (3d Cir. 1995); Mrs. W. v.
Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987). The First Circuit has
not discussed whether the amendment overruled Smith, but it has
assumed without discussion that plaintiffs may make IDEA-based
claims under § 1983 as long as administrative remedies are
exhausted. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52 (1st Cir.
2002). Still, the Supreme Court has been cautious about finding
implied § 1983 causes of action, Gonzaga Univ. v. Doe, 536 U.S.
273, 287 (2002), and the question was not squarely addressed in
Frazier.
5
IDEA requires plaintiffs to exhaust IDEA administrative
remedies before pursuing claims under other federal statutes for
relief also available under IDEA. IDEA provides that:
Nothing in [IDEA] shall be construed to restrict or limit
the rights, procedures, and remedies available under the

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plaintiffs participated in the November 2001 administrative hearing

and the August 2002 campo meeting, the plaintiffs have not

exhausted administrative remedies. The defendants' position is

that the plaintiffs were required to return to the hearing officer

and get another administrative order enforcing the original

decision, even though Joshua's IEP team had determined that the

order needed to remain in effect. The district court rejected this

reasoning, and we agree.

The defendants rely on two arguments to support their

position. First, the defendants argue that the administrative

order was valid only for the 2001-2002 school year. They correctly

note that IDEA requires a child's IEP to be updated at least once

a year. 20 U.S.C. § 1414(d)(4)(A)(i). From this, they leap to the

conclusion that Joshua must exhaust remedies by obtaining a new

order every school year before he may seek review of the original

order. This argument, as to the original order, would create a

situation capable of repetition, evading review. See Board of

Education v. Rowley, 458 U.S. 176, 186 n.9 (1982) (noting that

Constitution, the Americans with Disabilities Act of
1990, Title V of the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of children with
disabilities, except that before the filing of a civil
action under such laws seeking relief that is also
available under [subchapter II of IDEA], the
administrative] procedures [of IDEA] shall be exhausted
to the same extent as would be required had the action
been brought under this [subchapter].
20 U.S.C. § 1415(l).

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"[j]udicial review [of IDEA claims] invariably takes more than nine

months to complete, not to mention the time consumed during the

preceding state administrative hearings" and holding for this

reason that federal courts have jurisdiction to redress IDEA claims

from school years that have ended and to apply relief to future

school years).

Moreover, the premise of the defendants' argument is

factually incorrect. This is not a situation in which obligations

expired with the new school year or in which plaintiffs sought to

avoid the requirement of an annual review of an IEP. Joshua's

special education team and his parents agreed at the August 2002

campo meeting that he needed an interpreter for the third grade,

just as the hearing officer had determined earlier. Defendant

Elsie Trinidad, the director of the school, was present at the

meeting and agreed to make an urgent request for an interpreter.

That request was communicated to the remaining defendants in the

August 9 letter from the superintendent of the school. In essence,

the team agreed that the order would continue to apply in the third

grade. Even now, the defendants do not argue either that they, as

the Commonwealth or officers of the Commonwealth, could challenge

this local determination under Puerto Rico law or that there is any

change in Joshua's condition that would affect his need for an

interpreter. At oral argument and in the evidentiary hearing, they

conceded that Joshua still needs a sign language interpreter.

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 Second, the defendants argue that, under § 1415(l), no

other federal claims may be brought unless IDEA administrative

remedies are exhausted and that exhaustion requires a timely filing

of an IDEA suit for judicial review of the administrative action.

This argument fails. The plain language of IDEA indicates that

judicial review is not itself a component of the exhaustion of

administrative remedies. Section 1415(l) requires that before

suing under other federal statutes for relief also available under

IDEA, "the procedures under subsections (f) and (g) shall be

exhausted to the same extent as would be required [in an IDEA

suit]." Subsections (f) and (g) provide for local and state-level

administrative hearings. They do not provide for judicial review

of those hearings; such review is provided separately under

subsection (i). Cf. Frazier, 276 F.3d at 60-63 (referring to §

1415(l) as requiring plaintiffs to "exhaust administrative

remedies" under IDEA (emphasis added)).

3. Statute of Limitations

The district court held that the plaintiffs' claims under

the ADA and Rehabilitation Act were timely because the statute of

limitations for civil actions in Puerto Rico is tolled until the

plaintiff's twenty-first birthday if the cause of action accrued

when the plaintiff was a minor.6

6
The court did not rule on the timeliness of the
plaintiffs' IDEA claim because it had dismissed that claim for lack
of statutory standing.

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 The defendants argue that the plaintiffs' claims were

untimely because, under IDEA, if plaintiffs are parties aggrieved,

they had to bring their court action within thirty days of the

December 4, 2001 administrative order. The defendants contend that

IDEA should borrow its statute of limitations from 3 L.P.R.A. §

2172, which provides the statute of limitations for the Puerto Rico

Administrative Procedure Act (APA), 3 L.P.R.A. § 2175. They also

contend that because the ADA and Rehabilitation Act claims are

based on facts giving rise to an IDEA claim, the statute of

limitations applicable under IDEA should apply to those claims as

well.

The plaintiffs' federal claims -- under IDEA, the ADA,

the Rehabilitation Act, and § 1983 -- all borrow the most analogous

statute of limitations from Puerto Rico law, provided that it does

not conflict with federal law or policy. See Wilson v. Garcia, 471

U.S. 261, 267 (1985) (§ 1983); Providence Sch. Dept. v. Ana C., 108

F.3d 1, 3 (1st Cir. 1997) (IDEA); Gaona v. Town & Country Credit,

324 F.3d 1050, 1055-56 (8th Cir. 2003) (ADA and Rehabilitation

Act); Downs v. Mass. Bay Transp. Auth., 13 F. Supp.2d 130, 136 (D.

Mass. 1998) (same). Even assuming arguendo that the defendants are

correct that the state statute of limitations applicable to IDEA

claims should apply to all four federal claims regardless of the

nature of those claims, the plaintiffs' federal claims are timely.

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 Not all IDEA claims are necessarily governed by the same

statute of limitations. In choosing statutes of limitations, this

court has balanced three IDEA policy goals: the parental interest

in participation, the school's interest in speedy resolution of

disputes, and the child's interest in receiving educational

entitlement. Id. at 931-33. Thus, this court has applied a six-

year state limitations period for personal injury actions to IDEA

claims for compensatory education, which seek to obtain additional

education to make up for an earlier deprivation of FAPE, even

though it applies a thirty-day statute of limitations to review of

IDEA administrative hearings. Murphy v. Timberlane Regional Sch.

Dist., 22 F.3d 1186, 1192-94 (1st Cir. 1994). And the Eleventh

Circuit has held that an IDEA claim for attorneys' fees arising

under 20 U.S.C. § 1415(e)(4) has a different limitations period

than an IDEA claim seeking review of the agency determination under

§ 1415(e)(2).7 Zipperer v. Sch. Bd. of Seminole County, 111 F.3d

847, 851-52 (11th Cir. 1997).

The defendants urge the thirty-day limitations period for

judicial review of administrative orders under the Puerto Rico APA.

3 L.P.R.A. § 2172. When the "character" of IDEA claims is

"essentially one of review" of an adverse administrative decision,

this court has borrowed such statutes of limitations. Ana C., 108

7
IDEA has since been amended, so actions seeking judicial
review are brought under § 1415(i)(2), whereas those seeking
attorneys' fees are brought under § 1415(i)(3).

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F.3d at 3-5; Amann, 991 F.2d at 931-32 (quotation marks and

citation omitted). But the plaintiffs here are not in the same

position as those merely seeking judicial review of adverse

administrative orders. The plaintiffs, in turn, rely on Puerto

Rico's one-year statute of limitations for personal injury actions,

31 L.P.R.A. § 5298. But the year-long length of this limitations

period raises its own concerns. When a disabled child is denied

IDEA benefits, prompt resolution of the situation should be

encouraged.8

We need not resolve these issues. Even under a thirty-

day statute of limitations, the plaintiffs' federal claims are

timely. The defendants argue that the limitations period accrued

when the administrative order issued on December 4, 2001. This

rule has the absurd result of requiring the plaintiffs to bring

suit by January 4, 2002, before they had suffered the injury that

is the basis for their claims.

Instead, we hold that the plaintiffs' claims did not even

arguably begin to accrue until early September 2002 -- within

thirty days of the October 1, 2002 complaint. The time at which

8
The same concern about prompt resolution of IDEA claims
is raised by the district court's ruling that the statute of
limitations is tolled until children reach the age of majority.
The defendants present a legitimate concern that, under such a
rule, they could be held hostage for some potential damages claims
based on IDEA, the Rehabilitation Act, or the ADA for as long as
eighteen years. See 20 U.S.C. § 1412(a)(1)(A) (IDEA coverage
begins at age three).

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this claim began to accrue is an issue of federal, not local, law.

Under federal law, "the time of accrual of a civil rights action is

when the aggrieved party knows or has reason to know of the injury

which is the basis for his action or when facts supportive of a

civil rights action are or should be apparent to a reasonably

prudent person similarly situated." Rodriguez-Narvaez v. Nazario,

895 F.2d 38, 41 n.5 (1st Cir. 1990). While Joshua and his parents

were waiting for a response from the Department, they did not know

or have reason to know whether Joshua would be given a sign

language interpreter for the school year. The superintendent's

letter indicated that the problem might be solved "soon" and

"permanently" if the Department intervened. It was reasonable to

have waited at least until September 2, 2002 -- eleven days after

the delivery of the letter -- to conclude that the Department would

not comply. The plaintiffs' claims are not time-barred.

C. Standards for Preliminary Injunctive Relief

Although a preliminary injunction is sometimes said to be

reviewed for abuse of discretion, the standard of review depends on

the issue under consideration. See Langlois v. Abington Hous.

Auth., 207 F.3d 43, 47 (1st Cir. 2000). "[P]ure issues of law

(e.g., the construction of a statute) are reviewed de novo,

findings of fact for clear error, and 'judgment calls' with

considerable deference depending upon the issue." Id.

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 To obtain a preliminary injunction, the plaintiffs bear

the burden of demonstrating (1) a substantial likelihood of success

on the merits, (2) a significant risk of irreparable harm if the

injunction is withheld, (3) a favorable balance of hardships, and

(4) a fit (or lack of friction) between the injunction and the

public interest. McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir.

2001). The defendants contend that the district court erred in

granting the preliminary injunction because the plaintiffs failed

to show a substantial likelihood of success on any of their federal

claims and failed to demonstrate potential irreparable harm.

1. Substantial Likelihood of Success

There is sufficient evidence to support the district

court's conclusion that a sign language interpreter was necessary

to provide Joshua the free appropriate public education guaranteed

to him under IDEA and the accommodations required for him under §

504. The hearing officer determined in December 2001 that IDEA

requires that Joshua be provided with a sign language interpreter

and that his need was "urgent." This determination is final

because the defendants did not seek judicial review. 20 U.S.C. §

1415(i)(1)(A). A mere eight months later, the defendants again

deprived Joshua of such an interpreter. Even assuming arguendo

that the defendants could present an argument of changed conditions

without having first exhausted administrative remedies, no evidence

has been presented in support of such an argument. To the

-22-
contrary, the defendants have conceded that Joshua is still in need

of an interpreter.

As to the Rehabilitation Act, the defendants argue, based

on interpretive regulations, that the plaintiffs have failed to

state a claim at all. They cite regulations stating that

"[a]ttendants, individually prescribed devices, readers for

personal use or study, or other devices or services of a personal

nature are not required under this section," 28 C.F.R. § 42.503(f),

and argue that this means sign language interpreters are not

covered.9 The defendants left out two crucial sentences, perhaps

inadvertently, in quoting this regulation:

A [federal funding] recipient that employs fifteen or
more persons shall provide appropriate auxiliary aids to
qualified handicapped persons with impaired sensory,
manual, or speaking skills where a refusal to make such
provision would discriminatorily impair or exclude the
participation of such persons in a program or activity
receiving Federal financial assistance. Such auxiliary
aids may include brailled and taped material, qualified
interpreters, readers, and telephonic devices.

Id. (emphasis added). The regulation's reference to "qualified

interpreters" means that the earlier language of § 42.503(f) does

not undercut the plaintiffs' showing of a substantial likelihood of

9
Although the defendants contend that 28 C.F.R. §
42.503(f) applies to both the ADA and the Rehabilitation Act, the
regulation in fact applies only to the Rehabilitation Act. Section
42.503(f) refers only to discrimination in federally funded
programs and is listed in a subpart entitled "Nondiscrimination
Based on Handicap in Federally Assisted Programs or Activities--
Implementation of Section 504 of the Rehabilitation Act of 1973."

-23-
success. The defendants do not point to any differences between

the coverage of IDEA and § 504 that would be material here.

There was no abuse of discretion in finding a substantial

likelihood of success on the merits under IDEA and the

Rehabilitation Act.10

2. Irreparable Harm

The district court did not abuse its discretion in

determining that, without a sign language interpreter and with no

immediate prospects of one, Joshua would suffer irreparable harm.

At the evidentiary hearing and oral argument, the defendants argued

that they intended to comply with the administrative order but had

difficulty obtaining a certified sign language interpreter. They

suggested that the denial of preliminary injunctive relief would

not cause irreparable harm because Joshua would be provided with an

interpreter as soon as one became readily available. The

defendants' argument is at odds with other positions that they have

taken in this litigation and with the Department of Education's

silence when Joshua's parents and the María Bas de Vásquez School

raised the urgent need for an interpreter in August 2002.

10
As to the ADA, there is an analogous regulation stating
that "[t]his part does not require a public entity to provide to
individuals with disabilities . . . individually prescribed
devices, such as prescription eyeglasses or hearing aids . . . or
services of a personal nature including assistance in eating,
toileting, or dressing." 28 C.F.R. § 35.135. This rule does not
appear to exclude the provision of sign language interpreters from
the coverage of the ADA. But we need not resolve this issue, as
the other two grounds suffice.

-24-
 Defense counsel conceded in the evidentiary hearing that

the interpreter position had not even been advertised. Over two

months passed between the Department's receiving notice of the

problem from Joshua's parents and the district court's decision in

the case, and at no point did the defendants notify Joshua and his

parents or the district court that they had solved the problem by

finding an interpreter. When ordered to provide a certified

interpreter by the district court in November 2002, the defendants

procured one within ten days. These facts adequately support the

conclusion that, without preliminary injunctive relief, Joshua

would likely not be provided with an interpreter in the immediate

future.

The evidence also supports the conclusion that, without

a sign language interpreter and with no immediate prospects of one,

Joshua would suffer irreparable harm. See Blackman v. Dist. of

Columbia, 185 F.R.D. 4, 7 (D.D.C. 1999) (finding irreparable harm

in that case because "at the rate at which a child develops and

changes, especially one at the onset of biological adolescence . .

. , a few months can make a world of difference" in harm to a

child's educational development). Not all cases of delay or non-

compliance with a hearing officer's final IDEA order will

necessarily result in irreparable harm. Here, though, Joshua was

destined to spend a silent, fruitless year in school with only the

-25-
most remote hopes of being educated. By the time the injunction

issued, one third of that school year had already elapsed.

3. Balance of Hardships and the Public Interest

The district court did not abuse its discretion in finding

that the factors regarding the balance of hardships and the public

interest favor the plaintiffs. The defendants do not even argue

these points on appeal.

We affirm the grant of preliminary injunctive relief.

III.

A. Scope of Appellate Jurisdiction Over Denial of Motion To
Dismiss on Eleventh Amendment Grounds

The defendants moved to dismiss the plaintiffs' damages

claims, arguing that, under the Eleventh Amendment, they are immune

from any and all claims for monetary relief. Importantly, for

purposes of appellate jurisdiction, the defendants did not argue

that some damages claims may be asserted against them but not other

ones.11 The district court denied the defendants' motion. This

court has jurisdiction to hear an interlocutory appeal from that

11
Our exercise of appellate jurisdiction over the Eleventh
Amendment issue is perfectly consistent with Espinal-Dominguez v.
Commonwealth of Puerto Rico, No. 03-1551 (1st Cir. 2003). In
Espinal-Dominguez, this court found that it lacked appellate
jurisdiction over an interlocutory appeal from the denial of
Eleventh Amendment immunity where the defendant asserted immunity
from some, but not all, forms of monetary relief. Id. slip op. at
17. Here, the defendants have asserted immunity against all forms
of monetary relief, which is the classic situation under P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139
(2003).

-26-
denial. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 147 (1993). Our review of this issue is plenary.

Two questions arise as to the scope of appellate

jurisdiction in this case. The first issue is whether the

defendants' summary notice of appeal covers the denial of the

motion to dismiss.12 Fed. R. App. P. 3(c) requires that a notice

of appeal "designate the judgment, order, or part thereof being

appealed from." The defendants' notice of appeal refers only to

"Preliminary Injunction Order . . . issued and entered on November

1, 2002." This notice could be read as appealing only the part of

the November 1 order granting a preliminary injunction.

Alternatively, it could be stretched to encompass the entire

November 1 order, including the court's denial of the motion to

dismiss. Because the plaintiffs did not object to the ambiguity of

the notice and both sides briefed the Eleventh Amendment issue, we

read the notice of appeal liberally to cover both parts of the

November 1 order. See Blockel v. J.C. Penney Co., 337 F.3d 17, 23-

24 (1st Cir. 2003).

12
This discussion assumes arguendo that we would be neither
required nor authorized to review the Eleventh Amendment issue if
the defendant had failed to provide an adequate notice of appeal.
Ordinarily, a court must consider questions of subject matter
jurisdiction even if not covered by the notice of appeal. See
Seale v. INS, 323 F.3d 150, 152 n.1 (1st Cir. 2003). Unlike with
issues of subject matter jurisdiction, however, courts are not
required to decide Eleventh Amendment issues not properly before
them. Patsy v. Bd. of Regents, 457 U.S. 496, 515 (1982). In any
event, the notice of appeal, as described above, is adequate,
albeit barely so.

-27-
 The second issue is whether this court has appellate

jurisdiction to address the defendants' claim that the complaint

fails to state any claim for damages under any theory because the

statutes involved provide for no more than equitable remedies. The

defendants urge that these arguments be reached before reaching

their Eleventh Amendment argument. The issue is one of first

impression for us. Although the "collateral order" doctrine allows

this court to hear interlocutory appeals from denials of motions to

dismiss based on Eleventh Amendment immunity,13 see Metcalf & Eddy,

Inc., 506 U.S. at 147, the United States, as intervenor, argues

that, in adjudicating those appeals, we may not address whether the

plaintiffs have stated, under any theory, a damages claim against

which Eleventh Amendment immunity can be asserted. Mindful that

the Supreme Court has not yet decided this question, we disagree.

In Swint v. Chambers County Commission, 514 U.S. 35

(1995), the Supreme Court made clear that although the court of

appeals had collateral order jurisdiction over an interlocutory

appeal from a denial of qualified immunity to individual police

officers, it did not have pendent jurisdiction over the appeal of

13
The collateral order doctrine allows courts to hear
appeals from judgments that are not complete and final if they
"fall in that small class which finally determine claims of right
separable from, and collateral to, rights asserted in the action,
too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until
the whole case is adjudicated." Cohen v. Beneficial Ind. Loan
Corp., 337 U.S. 541, 546 (1949).

-28-
another party, a county commission, on a claim that the sheriff was

not its policymaker. Id. at 41-43. The Court held that the court

of appeals does not have discretion to exercise pendent

jurisdiction when the otherwise unappealable issue is not

"inextricably intertwined" with the issue on collateral order

appeal.14 Id. at 48-51. The Court left open the question of the

scope of appellate jurisdiction when the issues are inextricably

intertwined. Id. at 51.

Here, the question whether a cause of action for damages

exists is inextricably intertwined with the issue of Eleventh

Amendment immunity. Under Ex parte Young, state officers do not

have Eleventh Amendment immunity from claims for prospective

injunctive relief. 209 U.S. at 155-56, 159-60. The Eleventh

Amendment issue arises only as to monetary relief. Sound doctrine

supports the exercise of jurisdiction over the availability of

monetary relief as part of our interlocutory jurisdiction over pure

claims of Eleventh Amendment immunity. First, assertion of such

jurisdiction is in keeping with the rule that courts should avoid

deciding constitutional issues if non-constitutional grounds are

available. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347

14
This court had prefigured this issue in Roque-Rodriguez
v. Lema Moya, 926 F.2d 103, 105 & n.2 (1st Cir. 1991) ("[T]his
circuit has refrained from attempting to exercise pendent appellate
jurisdiction over matters beyond those bound up in the qualified
immunity inquiry." (internal quotation marks and citation
omitted)).

-29-
(1936) (Brandeis, J., concurring); Greenless, 277 F.3d at 607-08

(applying this rule in the Eleventh Amendment context). Second,

like the Supreme Court's rejection of the doctrine of hypothetical

jurisdiction, Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 94 (1998), it avoids the issuance of advisory opinions. See

id. at 101. Third, it is in keeping with the rationale of Parella

v. Retirement Board of the Rhode Island Employees' Retirement

System, 173 F.3d 46 (1st Cir. 1999), which this court has

repeatedly endorsed. See, e.g., Restoration Pres. Masonry, Inc. v.

Grove Eur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003); Seale v. INS,

323 F.3d 150, 155 (1st Cir. 2003); Greenless, 277 F.3d at 607.

Parella recognized that courts should avoid unnecessarily reaching

Eleventh Amendment issues because, inter alia, doing so can

squander scarce judicial resources and force defendants to expend

resources litigating Eleventh Amendment questions when not

necessary to resolve the case. 173 F.3d at 56. Those same

concerns apply here. It is important that it is the party claiming

Eleventh Amendment immunity that asks us to decide first whether

any claim for damages is asserted at all.

The United States relies on Bell Atlantic-Pennsylvania,

Inc. v. Pennsylvania Public Utility Commission, 273 F.3d 337 (3d

Cir. 2001). That opinion does not support the government's broad

argument. The Third Circuit in Bell Atlantic was concerned with

whether, when hearing an interlocutory appeal from the denial of a

-30-
motion to dismiss based on qualified immunity, it also had

jurisdiction under the collateral order doctrine to hear the very

different issues of res judicata and the statute of limitations.

Id. at 344. Like the Third Circuit, we agree that not every issue

raised by the denial of a pre-trial motion to dismiss may be

reached on collateral order appeal; indeed, most may not be. But

our jurisdiction extends to the issue whether damages are available

at all because that issue is inextricably intertwined with the

issue of Eleventh Amendment immunity, which arises only if such

damages are available.15

B. Availability of Damages

Not all of the plaintiffs' claims create a cause of

action for damages.

1. Section 1983

No cause of action for damages is stated under 42 U.S.C.

§ 1983 against a state, its agency, or its officials acting in an

official capacity. Will v. Mich. Dept. of State Police, 491 U.S.

58, 71 (1989).

15
We do not decide whether the individual defendants had
sufficient involvement to be liable to the plaintiffs for damages,
cf. Koslaw v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir.
2002), as that issue is not inextricably intertwined with the
Eleventh Amendment question and lies beyond our appellate
jurisdiction.

-31-
 2. IDEA

We conclude that tort-like money damages, as opposed to

compensatory equitable relief, are not available under IDEA.

Awards of compensatory education and equitable remedies that

involve the payment of money, such as reimbursements to parents for

expenses incurred on private educational services to which their

child was later found to have been entitled, remain available, but

the plaintiffs here have not pled claims for such remedies.

This circuit has foreshadowed our holding that money

damages are not available under IDEA. It has noted in dicta

without discussion "the fact that the array of remedies available

under the IDEA does not include money damages." Frazier, 276 F.3d

at 59. And it has held that damages were not available under the

identical remedial language of the Education for All Handicapped

Children Act (EHA), IDEA's predecessor statute. Doe v. Anrig, 692

F.2d 800, 812 (1st Cir. 1982).

Our conclusion follows the lead of the Supreme Court and

our sister circuits. Under the identical remedial language of the

EHA, the Supreme Court held that the district court could order

reimbursement of private educational expenses because -- and the

Court was emphatic on this point -- such reimbursement did not

constitute damages. Sch. Comm. of Burlington v. Dep't of Educ.,

471 U.S. 359, 370-71 (1985). Following Burlington, most courts

have found that tort-like money damages are not available under

-32-
IDEA even though the statutory language does not expressly preclude

such damages.16 We agree with the reasoning of these courts that

IDEA's primary purpose is to ensure FAPE, not to serve as a tort-

like mechanism for compensating personal injury. See, e.g., Polera

v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir. 2002).

3. Section 504 of the Rehabilitation Act and Title II of the
ADA

The law remains somewhat undeveloped as to the

availability of damages on these pleadings under Title II and §

504. Part of the difficulty arises from the overlapping nature of

liability under these statutes and under IDEA. All three statutes

may be available to redress particular denials of a free

appropriate public education, depending on the context. IDEA and

§ 504 apply similar standards for substantive relief,17 and although

16
See Polera v. Bd. of Educ., 288 F.3d 478, 483-86 (2d Cir.
2002) (damages not available under IDEA); Witte v. Clark County
Sch. Dist., 197 F.3d 1271, 1275 (9th Cir. 1999) (same); Sellers by
Sellers v. School Bd., 141 F.3d 524, 526-27 (4th Cir. 1998) (same);
Charlie F. by Neil F. v. Board of Educ., 98 F.3d 989, 991 (7th Cir.
1996) (same); Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir.
1996) (same); Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 980
F.2d 382, 386-87 (6th Cir. 1992) (damages not available under EHA);
Manecke v. School Bd., 762 F.2d 912, 915 n.2 (11th Cir. 1985)
(same).
17
The denial of FAPE obviously gives rise to a substantive
claim under IDEA. 20 U.S.C. § 1412. The regulations implementing
§ 504 parallel IDEA's language regarding substantive claims,
requiring public schools receiving federal funding to "provide a
free appropriate public education to each qualified handicapped
person who is in the recipient's jurisdiction." 34 C.F.R. §
104.33(a). But it may be that children can qualify as disabled for
purposes of § 504 but not IDEA. See Muller v. Comm. on Special
Education, 145 F.3d 95, 100 n.2 (2d Cir. 1998); but see N.L. v.

-33-
Title II employs different wording,18 none of those differences

appears to be material on these facts. Given the similarities in

the substantive standard for relief, the question arises whether

the availability of damages should differ under these three

statutes.

Although damages are sometimes available under § 504 and

Title II in certain circumstances, if federal policy precludes

money damages for IDEA claims, it would be odd for damages to be

available under another vehicle, such as § 504 or Title II, where

the underlying claim is one of violation of IDEA. Several circuits

have barred money damages under 42 U.S.C. § 1983 for IDEA-based

claims for precisely this reason.19 This circuit held twenty years

ago that damages for the denial of FAPE should not be available

Knox County Schs., 315 F.3d 688, 696 & n.5 (6th Cir. 2003)
(disagreeing and collecting cases to the contrary). And it may be
that § 504 claims require some showing of deliberate indifference
not required by IDEA. See Sellers, 141 F.3d at 528-29.
18
Title II of the ADA is violated if (1) the child is a
qualified individual with a disability, (2) he or she was denied
the benefits of public educational services, programs, or
activities, excluded from participating in such services, programs,
or activities, or otherwise discriminated against, and (3) that
denial was by reason of his or her disability. See Race v.
Toledo-Davila, 291 F.3d 857, 858 (1st Cir. 2002).
19
See Sellers, 141 F.3d at 529-31; Heidemann, 84 F.3d at
1033; Crocker, 980 F.2d at 386-87 (EHA). The Third Circuit,
however, has disagreed. See W.B. v. Matula, 67 F.3d 484, 494-95
(3d Cir. 1995) (approving damages under both § 504 and § 1983 for
IDEA-based claims). And this circuit has assumed without
discussion that damages were available under § 1983 for a violation
by a town school system of IDEA rights. Frazier, 276 F.3d at 59-
60.

-34-
under § 504 because they were not available under the EHA, IDEA's

predecessor statute. Colin K. by John K. v. Schmidt, 715 F.2d 1,

9-10 (1st Cir. 1983). But the Commonwealth has not briefed this

issue to us, and we are reluctant to resolve it.

Even assuming arguendo that damages are available under

§ 504 and Title II in cases such as this, despite being precluded

under IDEA, the question also arises whether damages are available

on the facts alleged in these pleadings. The complaint seeks

compensatory and punitive damages for economic and emotional harm

and pain and suffering caused by the denial of FAPE.

Punitive damages are clearly not available on either the

§ 504 or the Title II claim. Barnes v. Gorman, 536 U.S. 181, 189

(2002).

To state a claim for compensatory damages, the plaintiffs

must clear two hurdles. First, private individuals may recover

compensatory damages under § 504 and Title II only for intentional

discrimination. See Alexander v. Sandoval, 532 U.S. 275, 280-81

(2001).20 Here, the plaintiffs clear this hurdle because the

complaint, with all reasonable inferences drawn in its favor,

20
Alexander v. Sandoval, 532 U.S. 275 (2001), holds that
compensatory damages are available under Title VI only for
intentional discrimination. Id. at 280-81 (citing Guardians Ass'n
v. Civil Serv. Comm'n, 463 U.S. 582 (1983)). Section 504 of the
Rehabilitation Act and Title II of the ADA borrow their remedies
from Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et
seq. See 42 U.S.C. § 12133 (Title II of the ADA borrows remedies
from the Rehabilitation Act); 29 U.S.C. § 794a(a)(2)
(Rehabilitation Act borrows remedies from Title VI).

-35-
alleges intentional discrimination.21 The defendants deny that

there was any wrongful intent, but at this stage, we must credit

the pleadings.

Second, the plaintiffs must show that the type of damages

alleged are available as compensatory damages under § 504 and Title

II. The Supreme Court has held that compensatory damages are

generally available under both statutes. Id. at 279-80; see also

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 66 (1992)

("[W]e presume the availability of all appropriate remedies unless

Congress has expressly indicated otherwise."). The Court has not

defined the content of "compensatory damages" in this context.

Other courts are divided over whether compensatory damages under §

504 and Title II include damages for emotional harm or pain and

suffering caused by the denial of FAPE.22 This court held that such

21
The complaint alleges that the defendants claimed "they
[were] exempt from complying with federal law that makes
discrimination based [on] disability unlawful." It also alleges
that the defendants' "conduct [was] irrational, arbitrary and
unreasonable and is but a pretext" for discrimination, and that
the "defendant[s] ha[ve] engaged for years in a pattern and
practice of discriminating against some children with
disabilities."
22
Compare United States v. Forest Dale, Inc., 818 F. Supp.
954, 970 (N.D. Tex. 1993); Rivera Flores v. P.R. Tel. Co., 776 F.
Supp. 61, 71 (D.P.R. 1991); Jenkins v. Skinner, 771 F. Supp. 133,
136 (E.D. Va. 1991); Americans Disabled for Accessible Pub. Transp.
v. Skywest Airlines, 762 F. Supp. 320, 325 (D. Utah 1991); with
W.B., 67 F.3d at 495 (declining to preclude compensatory damages
from generalized pain and suffering caused by the denial of FAPE,
but noting that educational services are often more valuable than
any money damages that could be awarded); Kuntz v. City of New
Haven, 9 A.D.D. 1318 (D. Conn. 1993); Zaffino v. Surles, 9 A.D.D.

-36-
damages were not available when there was no evidence of economic

harm or animus toward the disabled, but left open the question of

whether such damages could be available in other circumstances.

Schultz v. Young Men's Christian Ass'n of U.S., 139 F.3d 286, 290-

91 (1st Cir. 1999). It is unclear at this stage whether there has

been economic harm; plaintiffs have pled that such harm exists, and

since we must credit that pleading, that suffices for present

purposes.

At this point, we cannot say with certainty that a

damages award under § 504 or Title II is precluded on these

pleadings, at least for intentional conduct causing economic harm.

Thus, we address the Eleventh Amendment issue.

C. Eleventh Amendment Immunity

1. Title II of the ADA

Puerto Rico is treated as a state for purposes of

Eleventh Amendment immunity. P.R. Ports Auth. v. M/V Manhattan

511 (S.D.N.Y. 1995); Sumes v. Andres, 938 F. Supp. 9, 13 (D.D.C.
1996); Doe v. District of Columbia, 796 F. Supp. 559, 571-73
(D.D.C. 1992); cf. Davis v. Monroe County Bd. of Educ., 526 U.S.
629, 650 (1999) (allowing private damages action under Title IX,
which employs a similar remedial scheme, to redress the denial of
"access to the educational opportunities or benefits" because of
intentional sex discrimination, but not characterizing such damages
as compensation for mental distress).
The Supreme Court's recent decision in Barnes v. Gorman,
536 U.S. 181 (2001), creates even more uncertainty regarding this
issue by suggesting that remedies under Title VI could be limited
to those available under contract law. Id. at 187-88 & n.2; see
also The Supreme Court, 2001 Term -- Leading Cases, 116 Harv. L.
Rev. 312, 317-18 (2002).

-37-
Prince, 897 F.2d 1, 9 (1st Cir. 1990). The issue whether the

Eleventh Amendment precludes damages actions against states, state

agencies, and state officers in their official capacities under

Title II of the ADA is pending before the Supreme Court in Lane v.

Tennessee, 315 F.3d 680 (6th Cir.), cert. granted, 123 S. Ct. 2622

(2003) (mem.). Accordingly, we direct the district court to stay

all proceedings as to such ADA damages claims (but not as to § 504

damages claims) until Lane is decided.

2. Section 504 of the Rehabilitation Act

The Commonwealth argues that it has not waived immunity

under the Rehabilitation Act. Title VI, from which § 504 of the

Rehabilitation Act borrows its remedies, provides that "[a] State

shall not be immune under the Eleventh Amendment of the

Constitution of the United States from suit in Federal court for a

violation of section 504 of the Rehabilitation Act of 1973." 42

U.S.C. § 2000d-7. The United States has intervened to argue, inter

alia, that under § 2000d-7, the Commonwealth has waived any

Eleventh Amendment immunity that it may have had by applying for

and accepting federal funds for the programs involved. We agree.

The defendants respond first that Congress cannot seek a

waiver of Eleventh Amendment immunity under § 504 unless Congress

has first established that it has the power to abrogate a state's

constitutional immunity. They thus argue that we must reach the

question of Congress's power to abrogate. The defendants' position

-38-
is illogical and would render the entire waiver doctrine

irrelevant. The two questions -- whether Congress has the power to

subject Puerto Rico to suit under § 504 by abrogating its immunity

and whether Puerto Rico waived any immunity it may have had under

§ 504 by accepting federal funds -- are separate. We need not

address Congress's power to abrogate because we find that Puerto

Rico waived any immunity it had.

Puerto Rico appears to argue that Congress may never

require a waiver of Eleventh Amendment immunity as a condition of

federal funding.23 The Supreme Court has flatly rejected this

argument. The Court has repeatedly held that Congress may

condition the receipt of federal funds on a state's relinquishment

of certain immunities. E.g., Coll. Sav. Bank v. Fla. Prepaid Post-

Secondary Educ. Expense Bd., 527 U.S. 666, 686 (1999) (noting the

circumstances under which Congress may condition the exercise of an

Article I power on a state's agreement to relinquish Eleventh

Amendment immunity); Alden v. Maine, 527 U.S. 706, 755 (1999)

("[T]he Federal Government [does not] lack the authority or means

to seek the States' voluntary consent to private suits.");

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985)

(indicating that Congress may "condition participation in . . .

23
Congress purported to enact § 504 pursuant to § 5 of the
Fourteenth Amendment. See Welch v. Texas Dep't of Highways &
Public Transp., 483 U.S. 468, 472 n.2 (1987). In enacting § 2000d-
7, however, Congress also acts under the Spending Clause.

-39-
programs funded [by statute] on a State's consent to waive its

constitutional immunity," provided that Congress speaks with a

clear voice).

Puerto Rico also appears to argue that Congress's power

under the Spending Clause does not encompass the ability to require

a waiver under § 504. We disagree, as has every other circuit to

have considered this argument. See A.W. v. Jersey City Pub. Schs.,

341 F.3d 234, 242-44 (3d Cir. 2003); Lovell v. Chandler, 303 F.3d

1039, 1051 (9th Cir. 2002); Jim C. v. United States, 235 F.3d 1079,

1080-81 (8th Cir. 2000) (en banc).

For the reasons well-articulated by the Third Circuit in

A.W., 341 F.3d at 241-44, there is no serious challenge to § 2000d-

7 under the Spending Clause. Under South Dakota v. Dole, 483 U.S.

203 (1987), Spending Clause legislation must satisfy five

requirements: (1) it must be in pursuit of the "general welfare,"

(2) conditions of funding must be imposed unambiguously, so states

are cognizant of the consequences of their participation, (3)

conditions must not be "unrelated to the federal interest in

particular national projects or programs" funded under the

challenged legislation, (4) the legislation must not be barred by

other constitutional provisions, and (5) the financial pressure

created by the conditional grant of federal funds must not rise to

the level of compulsion. Id. at 207-08, 211. The first and fourth

requirements are clearly satisfied here, and the second requirement

-40-
is as well, for the reasons articulated below. As to the third

requirement, § 2000d-7 is manifestly related to Congress's interest

in deterring federally supported agencies from engaging in

disability discrimination. A.W., 341 F.3d at 243-44. As to the

fifth requirement, Congress's requirement that states waive

immunity as to § 504 in exchange for federal funding is not

coercive. The waiver is as to the particular program or agency

that receives federal funds. See 29 U.S.C. § 794(a). Puerto Rico

has the choice of accepting federal funding elsewhere in its

government while declining federal funding for its Department of

Education.

Puerto Rico has clearly waived its Eleventh Amendment

immunity under § 504. Section 504 applies only to recipients of

federal funding.24 The Department of Education does not dispute

that it received federal funds at all relevant times.25 Because

24
Section 504's remedies provision, 29 U.S.C. § 794a(a)(2),
provides that "[t]he remedies, procedures, and rights set forth in
title VI of the Civil Rights Act of 1964 shall be available to any
person aggrieved by any act or failure to act by any recipient of
Federal assistance or Federal provider of such assistance under
section 504 of this title" (emphasis added).
25
Puerto Rico and its local governments received $4.8
billion in federal grants in 2002. U.S. Census Bureau, Federal Aid
to States for Fiscal Year 2002, at 1 tbl. 1 (2003). Of that, $650
million was from the U.S. Department of Education for programs such
as special education, bilingual education, educational research,
special education and rehabilitative services, vocational and adult
education, primary and secondary education, postsecondary
education, and student financial assistance. Id. at 5 tbl. 1, A-4
to A-7. Of that, $77.8 million was for special education. Id. at
5 tbl. 1 (2003).

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we find that Congress has clearly expressed its intent to require

waiver, the Commonwealth has waived its immunity by accepting

federal funds. See Arecibo Cmty. Health Care, Inc. v. Puerto Rico,

270 F.3d 17, 24-25 (1st Cir. 2001).

Congress's intent to require waiver is clear, as the

history of § 2000d-7's enactment demonstrates. In 1985, the

Supreme Court in Atascadero State Hospital v. Scanlon, 473 U.S. 234

(1985), held that § 504 did not contain a clear congressional

intent to require waiver. Id. at 247. In response, Congress

enacted § 2000d-7. As the Court noted in Lane v. Pena, 518 U.S.

187 (1996), § 2000d-7 is an unequivocal expression of Congress's

intention to require waiver of states' Eleventh Amendment immunity

as a condition of federal financial assistance under the

Rehabilitation Act. Id. at 198.

The majority of circuits that have addressed the issue

have also held that § 2000d-7 unambiguously requires states to

waive their Eleventh Amendment immunity. See A.W., 341 F.3d 242-44

(3d Cir. 2003); Nihiser v. Ohio EPA, 269 F.3d 626, 628 (6th Cir.

2001); Jim C., 235 F.3d at 1081-82; Stanley v. Litscher, 213 F.3d

340, 344 (7th Cir. 2000); Pederson v. La. St. Univ., 213 F.3d 858,

875-76 (5th Cir. 2000); Sandoval v. Hagan, 197 F.3d 484, 493-94

(11th Cir. 1999), rev'd on other grounds, 532 U.S. 275 (2001);

Litman v. George Mason Univ., 186 F.3d, 544, 554 (4th Cir. 1999);

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Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997). The

Commonwealth, by accepting federal funds, has waived its immunity.

The Commonwealth tries to avoid this result by arguing

that even after Congress has expressed a clear intent to require

waiver and a state has accepted federal funds pursuant to that

waiver provision, further proof may be required that a state

knowingly and voluntarily waived immunity. We reject any such

requirement. Further proof is not necessary under the law of this

circuit.26 To the extent that the defendants rely on reasoning in

two cases from the Second and Fifth Circuits, Garcia v. S.U.N.Y.

Health Sciences Center, 280 F.3d 98, 115 & n.5 (2d Cir. 2001); Pace

v. Bogalusa City Sch. Bd., 325 F.3d 609, 615-18 (5th Cir. 2003), we

reject this reasoning, as have three other circuits. See A.W., 341

F.3d at 250-54; Doe v. Nebraska, 345 F.3d 593, 601-04 (8th Cir.

26
In any event, the Commonwealth's argument that its waiver
was unknowing and involuntary would fail even if such further proof
were necessary. The Commonwealth argues that its waiver was
unknowing for two reasons: (1) Puerto Rico started accepting
federal funds before the Supreme Court's modern Eleventh Amendment
jurisprudence, which started in 1996 with Seminole Tribe v.
Florida, 517 U.S. 44 (1996), and (2) until the decision in Bd. of
Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), it did not
know that it had a valid Eleventh Amendment defense to be waived.
But the acceptance of the federal funds relevant to the events in
this case (which started in August 2001) occurred after Garrett was
decided in February 2001. And any possible issue of fair notice to
the Commonwealth was resolved by the 1986 enactment of § 2000d-7.
The Commonwealth also argues that Puerto Rico needs
federal funds so badly that the waiver was not "voluntary." But,
as we noted earlier, Puerto Rico may accept federal funding
elsewhere in its government while declining it for the agency
involved in this case. This does not rise to the level of
compulsion.

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2003); Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d

1288, 1292-93 (11th Cir. 2003) (per curiam).

IV.

We affirm the grant of the preliminary injunction and the

denial of Eleventh Amendment immunity on grounds of waiver under §

504. We remand the case with instructions to stay the claims under

Title II of the ADA, and for further proceedings consistent with

this opinion. Costs are awarded to the plaintiffs.

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