[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
September 11, 2003
No. 02-16078 THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 97-00092 CV-AR-S
PATRICIA GARRETT,
Plaintiff-Appellant,
UNITED STATES OF AMERICA
Plaintiff-Intervenor-
Appellant,
versus
UNIVERSITY OF ALABAMA AT
BIRMINGHAM BOARD OF TRUSTEES,
Defendant-Appellee.
_____________________________
No. 02-16186
_____________________________
D. C. Docket No. 99-02712 CV-C-NE
JOSEPH STEPHENSON,
Plaintiff-Appellant,
versus
ALABAMA DEPARTMENT OF CORRECTIONS,
DONAL CAMPBELL, in his official
capacity as Director, Department of Corrections,
Defendants-Appellees.
_____________________________
No. 02-16408
_____________________________
D. C. Docket No. 97-02179 CV-AR-S
MILTON ASH,
Plaintiff,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor-
Appellant,
versus
ALABAMA DEPARTMENT OF YOUTH
SERVICES,
Defendant-Appellee.
2
_____________________________
02-16455
_____________________________
D. C. Docket No. 97-02179 CV-AR-S
MILTON ASH,
Plaintiff-Appellant,
UNITED STATES OF AMERICA,
Intervenor-Plaintiff,
versus
ALABAMA DEPARTMENT OF YOUTH
SERVICES,
Defendant-Appellee.
_________________________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________________________
(September 11, 2003)
Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and STORY*,
District Judge.
*
Honorable Richard W. Story, United States District Judge for the Northern District of Georgia,
sitting by designation.
3
PER CURIAM:
Patricia Garrett, Milton Ash and Joseph Stephenson (collectively
“Appellants”) are residents of Alabama who suffer from disabilities. In separate
civil actions in the Northern District of Alabama, they sued their former
employers, the Board of Trustees of the University of Alabama in Birmingham
(UAB) (Garrett), the Alabama Department of Youth Services (ADYS) (Ash), and
the Alabama Department of Corrections (Stephenson) (collectively “the state
agencies”), under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.1
1
All three plaintiffs also raised claims under the Americans with Disabilities Act (ADA), and
Garrett raised a claim under the Family and Medical Leave Act. Garrett and Ash filed their claims
before Stephenson filed. The district court initially dismissed all of Garrett and Ash’s claims
because of Eleventh Amendment immunity, and Garrett and Ash appealed. On appeal the cases were
consolidated; and we reversed in part, saying that Congress had abrogated the state’s immunity to
suits under the ADA and section 504 of the Rehabilitation Act. Garrett v. Univ. of Ala. at
Birmingham Bd. of Trustees, 193 F.3d 1214, 1218-19 (11th Cir. 1999). UAB and ADYS appealed
our decision to the United States Supreme Court. The Supreme Court, in Board of Trustees of the
Univ. of Ala. v. Garrett, 121 S.Ct. 955 (2001), reversed our decision and said the state agencies were
entitled to immunity on the ADA claims because the ADA exceeded Congress’s authority, under §
5 of the Fourteenth Amendment, to abrogate a state’s Eleventh Amendment immunity: neither a
pattern of discrimination by the States which violates the Fourteenth Amendment nor a remedy
“congruent and proportional to the targeted violation” had been shown. Id. at 967-68. On remand
from the Supreme Court, we said that, under the Supreme Court’s reasoning, Congress could not
abrogate a state’s immunity from suit to claims under the Rehabilitation Act. Garrett v. Univ. of Ala.
at Birmingham Bd. of Trustees, 261 F.3d 1242, 1244 (11th Cir. 2001). On rehearing, we remanded
4
The state agencies moved for summary judgment based on their Eleventh
Amendment immunity. 2 Appellants responded that the state agencies, which all
receive federal funds, waived their Eleventh Amendment immunity to claims
under section 504 of the Rehabilitation Act. The district court determined that the
state agencies were immune from suit and granted summary judgment dismissing
Appellants’ claims. Because the state agencies have waived their Eleventh
Amendment immunity by accepting federal funds, we VACATE the district
court’s judgment and REMAND the cases for further proceedings.
“The grant or denial of a state’s sovereign immunity defense is an issue of
law subject to de novo review by this court.” See In re Burke, 146 F.3d 1313,
1316 (11th Cir. 1998).
Appellants argue that the state agencies waived their Eleventh Amendment
immunity and willingly consented to private suits under the Rehabilitation Act
when they accepted federal funds.3 42 U.S.C. § 2000d-7 provides:
the cases for the district court to consider whether the state agencies had waived their immunity to
suits under the Rehabilitation Act. Garrett v. Univ. of Ala. at Birmingham Bd. of Trustees, 276 F.3d
1227, 1228-29 (11th Cir. 2001). This appeal arises out of the district court’s decision on remand.
Stephenson’s claims were filed while the Garrett case was proceeding on appeal (Stephenson initially
only filed an ADA claim; he subsequently amended his complaint to add a claim under the
Rehabilitation Act).
2
The merits of Appellants’ Rehabilitation Act claims are no issue in this appeal.
3
Garrett also argues that UAB waived its Eleventh Amendment immunity when it failed to raise
the defense in its answer. Because we conclude that Appellees have waived their Eleventh
5
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 [29 U.S.C.
§794], title IX of the Education Amendments of 1972 [20 U.S.C.
§1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. § 6101
et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et
seq.], or the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.
In Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), overruled on other
grounds, Alexander v. Sandoval, 121 S.Ct. 1511 (2001), we said that section
2000d-7 manifested an “unmistakable intent to condition federal funds on a state’s
waiver of sovereign immunity.” Sandoval, 197 F.3d at 493. In addition, we said a
state waives its Eleventh Amendment immunity if it continues to receive federal
funds after the provision was enacted. Id. at 500.
The Sandoval court also said that Title VI of the Civil Rights Act of 1964
created an implied private right of action to enforce regulations promulgated under
section 602. 197 F.3d at 502. The Supreme Court granted certiorari on this issue
Amendment Immunity by accepting federal funds, we decline to discuss this argument.
6
and reversed, saying only that Title VI did not create a private right of action to
enforce the regulations. Alexander, 121 S.Ct. at 1523. The Supreme Court did
not reject the Sandoval court’s discussion of section 2000d-7 and its resolution of
the waiver of Eleventh Amendment immunity issue.4 Sandoval’s resolution of the
waiver of Eleventh Amendment immunity issue survived Alexander. See
generally United States v. Kirk, 528 F.2d 1057, 1063-64 (5th Cir. 1976)(decisions
of this court on issues remain binding, notwithstanding grant of certiorari and
reversal on other issues).5 Unless the state agencies can show that Sandoval has
been implicitly overruled by the Supreme Court (or this court sitting en banc), or
that Sandoval is distinguishable, it controls the outcome of this case.
The state agencies argue that Sandoval has been implicitly overruled by the
Supreme Court in Federal Maritime Comm’n v. South Carolina State Ports Auth.,
4
The Supreme Court, if anything, ratified the Sandoval court’s position, saying in dicta:
[s]ection 1003 of the Rehabilitation Act Amendments of 1986, 100 Stat. 1845, 42
U.S.C. § 2000d-7, expressly abrogated State’s sovereign immunity against suit
brought in federal court to enforce Title VI and provided that in a suit against a State
“remedies (including remedies both at law and in equity) are available . . . to the
same extent as such remedies are avaliable . . . in the suit against any public or
private entity other than a State,” §2000d-7(a)(2) . . . . It is thus beyond dispute that
private individuals may sue to enforce § 601.
Alexander, 121 S.Ct. at 1516 (citations omitted)
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit handed down before 01 October 1981.
7
122 S.Ct. 1864 (2002).6 Federal Maritime Comm’n discusses whether a state can
be subject to an administrative adjudication of a complaint when that complaint
could not be brought in court because of the state’s Eleventh Amendment
immunity. Federal Maritime Comm’n said nothing about whether Congress could
condition receipt of federal funds on a waiver of Eleventh Amendment immunity.
While an intervening decision of the Supreme Court can overrule the
decision of a prior panel of our court, the Supreme Court decision must be clearly
on point. See Florida League of Professional Lobbyists, Inc. v. Meggs, 87 F.3d
457, 462 (11th Cir. 1996)(“[W]e are not at liberty to disregard binding case law
that is so closely on point and has been only weakened, rather than directly
overruled, by the Supreme Court.”) “Without a clearly contrary opinion of the
Supreme Court or of this court sitting en banc, we cannot overrule a decision of a
prior panel of this court . . . .” National Labor Relations Board v. Datapoint Corp.,
642 F.2d 123, 129 (5th Cir. Unit A Aug. 1981)(emphasis added). Federal
6
The state agencies also argue that Alden v. Maine, 119 S.Ct. 2240 (1999), and College Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 119 S.Ct. 2219 (1999), implicitly overrule
Sandoval. Both Alden and College Sav. Bank were decided before Sandoval and cannot implicitly
overrule it. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001)(“[W]e categorically
reject any exception to the prior panel precedent rule based upon a perceived defect in the prior
panel’s reasoning or analysis as it relates to the law in existence at that time.”).
8
Maritime Comm’n and Sandoval are not clearly inconsistent. We are bound to
follow Sandoval.7
The state agencies also argue that, even if Sandoval was not overruled, they
can prevail under the analysis of Garcia v. S.U.N.Y. Health Sciences Center of
Brooklyn, 280 F.3d 98 (2d Cir. 2001), and Pace v. Bogalusa City School Bd., 325
F.3d 609 (5th Cir. 2003), rehearing en banc granted, 2003 WL 21692677 (5th Cir.
July 17, 2003).8 In Garcia, the Second Circuit said that a state could not
knowingly waive its Eleventh Amendment immunity to claims under section 504
of the Rehabilitation Act because the state would believe that Congress had
already abrogated its immunity to claims under the ADA. 280 F.3d at 114. In
Pace, the Fifth Circuit adopted the Second Circuit’s reasoning. 325 F.3d at 616-
17.
The state agencies argue that they could not have knowingly waived their
immunity to claims under section 504 of the Rehabilitation Act because they
7
The state agencies make several arguments that section 2000d-7 cannot operate as a valid waiver
of Eleventh Amendment immunity. These arguments include that Congress cannot use its Spending
Clause powers to obtain a waiver of Eleventh Amendment immunity. All of these arguments are
foreclosed by Sandoval.
8
As an alternative ground for affirming the district court, the state agencies argue that no private
right of action can exist against a state under section 504 of the Rehabilitation Act. The Supreme
Court has made clear that section 504 is “enforceable through private causes of action.” Barnes v.
Gorman, 122 S.Ct. 2097, 2100 (2002). Section 2000d-7 makes clear that states accepting federal
funds are not immune to suits for violations of section 504. Appellees’ argument that this provision
does not include private actions is without merit.
9
thought they did not have immunity to waive. They argue that the ADA purported
to abrogate a state’s immunity to discrimination claims based on disabilities and,
until the Supreme Court said -- in Board of Trustees of the Univ. of Alabama v.
Garrett, 121 S.Ct. 955 (2001) -- that this abrogation was invalid, the state agencies
had no reason to believe they were immune to these kinds of claims. They,
therefore, claim that they could not make a voluntary waiver of immunity. See
Garcia, 280 F.3d at 114 (“[T]he proscriptions of Title II [of the ADA] and § 504
are virtually identical, a state accepting conditioned federal funds could not have
understood that in doing so it was actually abandoning its sovereign immunity
from private damages suits.”). The state agencies point out that Sandoval
addresses section 2000d-7’s impact on Title VI of the Civil Rights Act of 1964
which does not have a parallel statute, like the ADA, purporting to abrogate a
state’s sovereign immunity.
Sandoval prevents us from adopting this argument. In Sandoval we said
that the “unequivocal indication that a State has consented to federal jurisdiction”
could be provided by the statutory language in the waiver provision -- “either by
the most express language or by such overwhelming implication from the text as
(will) leave no room for any other reasonable construction.” Sandoval, 197 F.3d
at 493 (internal quotation marks and citations omitted)(alteration in original).
10
Where Congress has unambiguously conditioned the receipt of federal funds on a
waiver of immunity, Sandoval does not leave open the possibility that a state can
continue to accept federal funds without knowingly waiving its immunity. The
Sandoval court then said that section 2000d-7 “explicitly waives state sovereign
immunity.” Id. We reject the argument that a state by accepting federal funds
after the enactment of section 2000d-7 only waived its immunity to claims under
some of the acts listed in that section.
Section 2000d-7 unambiguously conditions the receipt of federal funds on a
waiver of Eleventh Amendment immunity to claims under section 504 of the
Rehabilitation Act. By continuing to accept federal funds, the state agencies have
waived their immunity. 9 We VACATE the district court’s orders granting
summary judgment and dismissing Appellants’ claims and REMAND the cases for
further proceedings.
VACATED and REMANDED.
9
Ash also argued that the district court abused its discretion when it refused to allow him to
amend his complaint to add a claim for injunctive relief under Ex parte Young, 28 S.Ct. 441 (1908).
Ash sought to add this claim when the case was before the district court on remand to consider
whether the state agencies had waived their immunity. Because we have decided that the state
agencies have waived their immunity, Ash concedes that this argument is moot; and we say nothing
about it.
11