United States Court of Appeals Fifth Circuit F I L E D May 5, 2003 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III ______________________ Clerk
No. 02-30318 ______________________
THEODORE JOHNSON,
Plaintiff - Appellee,
v.
LOUISIANA DEPARTMENT OF EDUCATION; ET AL,
Defendants,
LOUISIANA DEPARTMENT OF EDUCATION; STATE OF LOUISIANA; PRESIDENT OF LOUISIANA STATE UNIVERSITY SYSTEM; BOARD OF REGENTS,
Defendants - Appellants.
______________________
No. 02-30369 ______________________
LYNN AUGUST,
SUZANNE MITCHELL; MAE NELSON; ED BARRAS; DEPARTMENT OF SOCIAL SERVICES, for the State of Louisiana
______________________________________________
Appeals from the United States District Court for the Eastern District of Louisiana ______________________________________________ Before JONES, WIENER, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
BACKGROUND
This court consolidated the cases of Theodore Johnson and
Lynn August due to the common issue whether Eleventh Amendment
sovereign immunity bars claims for money damages against entities
of the state of Louisiana, which arose during a particular time
period, brought under § 504 of the Rehabilitation Act. The
district courts refused to dismiss the claims. Based on the recent
decision of this court in Pace v. Bogalusa City Sch. Bd., No.
01-31026, 2003 WL 1455194 (5th Cir. Mar. 24, 2003), we vacate and
remand with instructions to dismiss the claims for lack of
jurisdiction.
Appellee Johnson was a full time student at the
University of New Orleans (UNO) on financial aid. He is disabled
by a partial paralysis of his left foot. In February 2000, a
medical emergency caused Johnson to withdraw from UNO. Four months
later, UNO revoked Johnson’s eligibility for financial aid.
Johnson successfully appealed the decision. The appeals committee,
however, did not inform Johnson of its decision until after the
fall 2000 semester had begun; the committee also imposed academic
requirements to maintain his eligibility for financial aid.
Johnson asserts that because of his late start in fall semester
classes, he was unable to comply with the academic requirements.
2 In January 2001, UNO denied Johnson financial aid for the spring
semester. Johnson filed suit against the Louisiana Department of
Education, the State of Louisiana, the President of the Louisiana
State University System, the Louisiana Board of Regents, and UNO1
under 42 U.S.C. § 1983, Title II of the Americans with Disabilities
Act (ADA), and § 504 of the Rehabilitation Act, alleging
discrimination against disabled students and failure to provide
reasonable accommodations.
August, a blind man, worked as a computer instructor for
the Louisiana Department of Social Services (DSS). In June 2000,
DSS eliminated August’s teaching duties, averring that August
failed to submit “manual materials” required for use in the
computer course. August contended, to the contrary, that he
submitted the necessary materials at the same time as a sighted
instructor whose materials were approved. August brought various
claims for money damages against the DSS and three state employees
in their official capacities, including claims under the ADA and
the Rehabilitation Act.
Separate district courts in the Eastern District of
Louisiana dismissed all claims against the defendants based on
1 The district court dismissed UNO as a defendant, concluding that the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College is the proper party to sue on behalf of UNO. Johnson amended his complaint to name the Board of Supervisors as a defendant.
3 state sovereign immunity except for those under § 504 of the
Rehabilitation Act. The defendants appeal, arguing that state
sovereign immunity bars the appellees’ § 504 claims. Under the
collateral order doctrine, appellate jurisdiction exists over an
appeal from the denial of a motion to dismiss based on state
sovereign immunity. Reickenbacker v. Foster, 274 F.3d 974, 976 (5th
Cir. 2001).
DISCUSSION
In denying the appellants’ motions to dismiss Johnson’s
and August’s § 504 claims, the district courts concluded that the
appellants waived their state sovereign immunity under the
Rehabilitation Act by receiving federal funds.2 This court reviews
denials of motions to dismiss based on state sovereign immunity de
novo. Id. This court’s recent decision in Pace, 2003 WL 1455194,
mandates a different conclusion.
Under the Constitution’s Article I spending power,
Congress may require a state to waive its sovereign immunity as a
condition for receiving federal funds if two conditions are met.
Id. at *3-4. First, “Congress must ‘manifest[ ] a clear intent to
condition participation in the programs funded under the [relevant]
Act on a State’s consent to waive its constitutional immunity.’”
2 Both courts acknowledged that no scope was left for congressional abrogation of state sovereign immunity by means of § 504 after this court’s decision in Reickenbacker, supra.
4 Id. at *3 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
247, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171, 183 (1985)). Second,
the state must knowingly and voluntarily waive its immunity by
accepting the funds. Id. at *4-5.
Pace held that 42 U.S.C. § 2000d-73 clearly,
unambiguously, and unequivocally conditions the receipt of federal
funds on a state’s waiver of sovereign immunity under § 504 of the
Rehabilitation Act. Id. at *3. Like the defendants in Pace,
however, the appellants in this case did not knowingly waive their
sovereign immunity under § 504 by accepting federal funds. Johnson
and August both complain of violations of § 504 that occurred
before the Supreme Court’s decision in Bd. of Trustees of the Univ.
of Ala. v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866
(2001) (holding that Title I of the ADA does not validly abrogate
state sovereign immunity pursuant to § 5 of the Fourteenth
Amendment) and this court’s decision in Reickenbacker, 274 F.3d at
976 (concluding that Title II of the ADA and § 504 of the
Rehabilitation Act do not validly abrogate state sovereign immunity
pursuant to Fourteenth Amendment § 5 powers).4 As we explained in
3 42 U.S.C. § 2000d-7 provides in pertinent part 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.” 4 Johnson alleges wrongful acts by the appellants in 2000 and in January 2001, and August alleges wrongful acts in 1999 and 2000.
5 Pace, prior to Garrett and Reickenbacker the appellants had “little
reason to doubt the validity of Congress’s asserted abrogation of
state sovereign immunity under § 504 of the Rehabilitation Act or
Title II of the ADA,” id. at *5, especially given this court’s
decision in Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998)
(holding that the ADA validly abrogated state sovereign immunity as
an exercise of Fourteenth Amendment § 5 powers), overruled by
Reickenbacker, 274 F.3d 974 (5th Cir. 2001). “Believing that the
acts validly abrogated their sovereign immunity, the [appellants]
did not and could not know that they retained any sovereign
immunity to waive by accepting conditioned federal funds.” Pace,
2003 WL 1455194, at *5.5 Because the appellants could not have
knowingly waived their sovereign immunity during the period covered
by their lawsuits, Johnson’s and August’s individual claims for
money damages under § 504 are barred.6 We re-emphasize the court’s
comment in Pace that the State’s victory will be temporally
confined, since after Garrett, the state could knowingly waive its
immunity by voluntarily continuing to receive federal funds
conditioned on waiver. See id. at *6 n.15.
5 The abrogation analysis with regard to Title II of the ADA and § 504 of the Rehabilitation Act is the same because both acts offer virtually identical protections. Pace, 2003 WL 1455194, at *5 n.11; Reickenbacker, 274 F.3d at 977 n.17. 6 We therefore need not reach the appellants’ alternative argument that they lacked authority under state law to waive their sovereign immunity against suit in federal court.
6 CONCLUSION
State sovereign immunity bars Johnson’s and August’s § 504
claims for money damages against the appellants. We therefore
vacate the district courts’ denials of the appellants’ motions to
dismiss and remand with instructions to dismiss these claims for
lack of jurisdiction.
VACATED and REMANDED.
7 Wiener, Circuit Judge, either dissenting or specially
concurring.*******
The premise of the instant case is simple: Exercising its
Spending Clause powers, Congress offers education funds to the
several states under Title X, on the condition, pellucidly
expressed in 42 U.S.C. § 2000d-7(a)(1), that states accepting such
funds will not be immune under the Eleventh Amendment from suit in
federal court for violation of § 504 of the Rehabilitation Act and
other named federal statutes, including Title IX, the Individuals
with Disabilities in Education Act (“IDEA”), and the Americans with
Disabilities Act (“ADA”). The Louisiana defendants accepted the
funds on that express condition, then proceeded to assert sovereign
immunity under the Eleventh Amendment after being sued in federal
******* Because of an artificially created, and, in my judgment, unfortunate sequence of events, it is impossible at this juncture to determine whether this writing will be a special concurrence or a dissent: (1) In November 2002, a panel of this court comprising Judges Jones, Smith, and —— by designation —— Siler of the Sixth Circuit, heard oral argument in Pace v. Bogalusa City School Board, No. 01-31026, and Judge Jones, as presiding judge of the panel, allotted the writing assignment to herself; (2) on February 11, 2003, while Pace remained under submission, a panel of this court comprising Judge Jones, myself, and DeMoss heard argument on the instant case, and Judge Jones, as presiding judge of the panel, allotted the writing assignment to herself; (3) six weeks later, on March 24, 2003, while the instant case remained under submission, Judge Jones filed her opinion in Pace, 2003 WL 1455194 (5th Cir. Mar. 24, 2003); and (4) on April 9, 2003, Judge Jones circulated to the panel her foregoing opinion in the instant case, rejecting my suggestion that prudence and orderliness require holding this case in abeyance until the time for filing petitions for rehearing in Pace expires (it still has not) and the mandate issues, either as a result of (a) our failure to rehear Pace en banc, (b) our having reheard and disposed of Pace en banc. Thus, until the mandate issues in Pace, finally determining the issue that controls in that case and in this one, it will be impossible to classify my writing either as a special concurrence or as a dissent. Only time will tell.
8 court on claims grounded in the Rehabilitation Act. The panel
majority has accepted the Louisiana defendants’s premise, reversed
the district court, and granted immunity.
The decision in this case, though, is not ours to make, at
least not yet. Only if the very recent (and as yet not
precedential) decision by a prior panel of this court is not
reheard en banc, or is reheard but is decided the same way, will
this panel be bound. I refer to Pace v. Bogalusa City School
Board,1 which involved precisely the same assertions of Eleventh
Amendment immunity by Louisiana defendants in a lawsuit brought
under the IDEA, ADA and Rehabilitation Act. In an unanimous
opinion, the Pace panel extended sovereign immunity to the
Louisiana defendants, reasoning that they could not have “knowingly
waived” their sovereign immunity prior to this court’s decision in
Reickenbacker v. Foster2 in 2001.3
If Pace does become precedent, this panel will have no wiggle
room: We will be bound by stare decisis. With respect, however, I
am convinced that the Pace panel misapplied the “knowing waiver”
test —— actually, applied the wrong “waiver” test —— and thus,
putting it candidly, wrongly decided Pace. I hope that our court
1 Id. 2 274 F.3d 974 (5th Cir. 2001). 3 Pace, 2003 WL 1455194, at *1-*5.
9 will correct this wrong by rehearing Pace en banc. While
tentatively concurring with the panel majority’s decision in this
case —— per our obligation to follow decisions of prior panels ——
I must respectfully express my disagreement with the analysis
employed in Pace and, through it, in the instant case, and thus my
disagreement with the results reached in both.
The fundamental problem with the reasoning of the panel
majority here —— repeating the problematic reasoning first employed
in Pace —— is that it conflates the “knowing waiver” exception of
Fourteenth Amendment abrogation of sovereign immunity with the
“clearly and unambiguously stated/non-coercive” waiver exception
for Spending Clause cases. Although both exceptions are
confusingly referred to in the case law as “waiver” doctrines, they
embody entirely different tests, the latter being less a true
waiver and more an acceptance of a condition precedent to
entitlement to the federal funds.
The relevant statute in both Pace and here —— § 504 of the
Rehabilitation Act —— was enacted in 1973. Originally, it
purported to waive state sovereign immunity pursuant to Congress’s
power to abrogate such immunity under § 5 of the Fourteenth
Amendment.4 In 1985, though, the Supreme Court held that the
Rehabilitation Act neither abrogated state sovereign immunity under
4 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244 n.4 (1985).
10 the Fourteenth Amendment nor waived state sovereign immunity under
the Spending Clause because it did not express “unequivocal
congressional intent” that, under this statute, states would be
susceptible to suit in federal court.5 The following year,
Congress responded by amending and re-enacting the Rehabilitation
Act with 42 U.S.C. § 2000d-7 to include an express condition
precedent to a state’s waiver of sovereign immunity for any state
that accepts federal funds made available under Congress’s Spending
Clause power. In other words, Congress explicitly chose to re-
enact the Rehabilitation Act’s waiver of state sovereign immunity
under its Spending Clause power.6
Thus, in analyzing whether the Louisiana defendants
relinquished their sovereign immunity under § 504 of the
Rehabilitation Act and § 2000d-7(a)(1) when they accepted federal
education money, the panel in Pace should have applied the
condition precedent waiver exception of the Constitution’s Spending
Clause to state sovereign immunity. Instead, the Pace court
applied the “knowing waiver” exception —— wrongly, I respectfully
5 Id. at 247. 6 Even before the Supreme Court’s decision in Atascadero, the Spending Clause was replacing the Fourteenth Amendment as the constitutional hook on which to hang Congress’s waiver of state sovereign immunity in the Rehabilitation Act. See Atascadero, 473 U.S. at 244 n.4 (noting that Petitioners were defending the Rehabilitation Act’s waiver of state sovereign immunity under Congress’s Spending Clause power, although Petitioners conceded that the statute was originally enacted under Congress’s Fourteenth Amendment powers).
11 submit —— which is specifically prescribed by the Supreme Court
only for federal “abrogation” statutes enacted by Congress pursuant
to § 5 of the Fourteenth Amendment. This distinction is critically
important, because employing the “waiver” test that is proper for
the Spending Clause leads inescapably to the conclusion that the
Louisiana defendants validly relinquished their right to claim
sovereign immunity by accepting federal funds. This result flows
from the crystal clear, express condition precedent in § 2000d-
7(a)(1) that by accepting the money, a State agrees to be subject
to, inter alia, § 504 of the Rehabilitation Act and to suit in
federal court on claims arising under that statute —— even if the
Louisiana defendants might have believed mistakenly that they had
no immunity to waive.
Justice Scalia’s majority opinion for College Savings Bank7
explains that the “knowing waiver” analysis applies only to federal
statutes enacted pursuant to § 5 of the Fourteenth Amendment; that,
in contrast, when a federal Spending Clause statute forthrightly
conditions a state’s acceptance of a congressional “gift” of funds
on the state’s relinquishment of sovereign immunity as an automatic
consequence of such acceptance,8 a “fundamentally different” issue
7 527 U.S. 666 (1999). 8 Id. at 686-87 (noting that “Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts”).
12 is presented.9 In Spending Clause cases, the only limitation on
Congress’s power to impose an express condition precedent of
relinquishing sovereign immunity is that the statute thus
conditioning acceptance of funds not be “coercive.” As long as the
condition is not coercive, the relinquishment of sovereign immunity
is valid.10 The Court emphasized in College Savings Bank that this
is a significantly lower constitutional hurdle for a federal
statute than the one that must be cleared to establish “knowing
waiver” of sovereign immunity under § 5 of the Fourteenth
Amendment.11
As the College Savings Bank Court explained, statutes that
impute waiver of sovereign immunity as an ipso facto consequence of
a state’s acceptance of federal monies would be “coercive” only at
the point “at which ‘pressure turns into compulsion,’”12 such as by
requiring the state to refrain “from otherwise lawful activity.”13
9 Id. at 686. 10 Cf. Grove City Coll. v. Bell, 465 U.S. 555, 575 (1984) (noting in Title IX case that “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept”). 11 The Court explained that the government’s conditioning of federal highway funds on a state’s setting its minimum drinking age at 21 years of age was not a “coercive” conditional grant of federal funds. Id. at 686. See South Dakota v. Dole, 483 U.S. 203 (1987). 12 Id. at 687 (quoting South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937))). 13 Id.
13 A state’s acceptance of Spending Clause money is inextricably
intertwined with any conditions clearly expressed and attached by
Congress, one of which can be and frequently is the relinquishment
of sovereign immunity.14 This is consistent with our longstanding
recognition of Congress’s far-reaching power under its Spending
Clause prerogative to place conditions on financial “gifts” to the
states, which they are free to accept or reject by accepting or
rejecting the grant.15
The upshot of this analysis is that when a Spending Clause
statute clearly imposes, as an automatic condition precedent to
obtaining federal funds under such a statute, the recipient state’s
commitment not to invoke sovereign immunity, and a state accepts
the funds on that condition, it is wholly inappropriate for a court
to embark on the “knowing waiver” analysis announced by the Court
in College Savings Bank for determining whether Congress has
validly abrogated a state’s sovereign immunity under § 5 of the
Fourteenth Amendment. To do so is to turn a blind eye on the
universally recognized distinction between those statutes that
would abrogate a state’s sovereign immunity under the Fourteenth
14 For example, Congress’s Spending Clause power to condition a state’s receipt of federal funds in the Medicaid program on a state’s waiver of its sovereign immunity to suits thereunder has been recently affirmed by two circuit courts. See Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002); Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002). 15 See United States v. Lipscomb, 299 F.3d 303, 318-24 (5th Cir. 2002) (discussing Congress’s power under the Spending Clause).
14 Amendment and those that elicit a state’s agreement not to assert
sovereign immunity as a condition precedent of its acceptance of
federal funding offered by Congress under its Spending Clause
powers.16 Yet, the panel opinion in Pace does exactly this: It
applies the “knowing waiver” test from College Savings Bank
immediately after it discusses Congress’s valid waiver, under the
Spending Clause, of state sovereign immunity in the Rehabilitation
Act.17 This unwarranted judicial cross-over produces an erroneous
and impermissible confusing or conflating of two parallel but
“fundamentally different” lines of jurisprudence.18
As the 1986 version of the statute at issue in both Pace and
this case —— the Rehabilitation Act —— was indisputably re-enacted
pursuant to Congress’s Spending Clause power, the only permissible
inquiry in these post-1986 cases is (1) whether the condition
16 Justice Scalia’s opinion for the Court in College Savings Bank goes so far as to criticize Justice Breyer’s dissent for asserting that the distinction between these two separate waiver doctrines “disappears” in some contexts, despite Justice Breyer’s acknowledging that there is an “intuitive difference” between the two tests. College Savings Bank, 527 U.S. at 687. 17 Pace, 2003 WL 1455194, at *2-*4. 18 See Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 820 n.5 (9th Cir. 2001) (noting that College Savings Bank is inappposite to those cases analyzing a waiver of sovereign immunity conditioned on a grant of funds under Congress’s Spending Clause power). See also College Savings Bank, 527 U.S. at 686 (noting that Spending Clause “cases seem to us fundamentally different from the present one” that involves solely a question of a “knowing” waiver under the Fourteenth Amendment) (emphasis added).
15 precedent is clearly and unambiguously expressed in the statute,
and (2) if it is thus clearly expressed, does this condition
“coerce” a waiver from the states in exchange for their obtaining
federal funds. As for the clear expression prong of the test, the
relevant statutory provision concerning § 504 of the Rehabilitation
Act and sovereign immunity states:
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 . . . or of the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.19
It cannot be questioned —— at least not seriously —— that this
statute explicitly predicates a state’s gaining access to federal
monies on that state’s commitment not to assert sovereign immunity
if suits are brought under § 504 of the Rehabilitation Act. This
condition applies to any state that accepts these funds, regardless
of whether the state “believes” that it does or does not have any
immunity to the Rehabilitation Act to relinquish. More important,
when the Louisiana defendants took the money, the Supreme Court had
already blessed the Rehabilitation Act as the paragon of drafting
by Congress of a proper waiver under its Spending Clause power. In
Lane v. Pena, the Court ruled that the current, 1986 version of the
Rehabilitation Act
was enacted in response to our decision in Atascadero
19 42 U.S.C. § 2000d-7(a)(1).
16 State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985), where we held that Congress had not unmistakably expressed its intent to abrogate the States’ Eleventh Amendment immunity in the Rehabilitation Act, and that the States accordingly were not “subject to suit in federal court by litigants seeking retroactive monetary relief under § 504.” Id. at 235, 105 S. Ct. at 3143-3144. By enacting [42 U.S.C. § 2000d-7], Congress sought to provide the sort of unequivocal waiver that our precedents demand.20
In fact, the Supreme Court went so far as to praise “the care with
which Congress responded to our decision in Atascadero by crafting
an unambiguous waiver of the States’ Eleventh Amendment immunity”
in the amended and re-enacted Rehabilitation Act.21 No room is left
for doubt, particularly after the Lane Court’s ruling in 1996, that
the express terms of the Rehabilitation Act clearly and
unambiguously create a valid, ipso facto waiver of state sovereign
immunity under Congress’s Spending Clause power as a condition
precedent to accepting the offered funds —— a condition that ripens
into irrevocability on acceptance of the funds.
As for the coercion prong of the test for conditions imposed
in Spending Clause statutes, there is not even a whiff of duress in
the conditional grant language in the Rehabilitation Act. Indeed,
it is far less controlling of a state’s behavior than the minimum-
age drinking laws that were imposed on the states through
Congress’s exercise of its Spending Clause power, and which were
20 Lane v. Pena, 518 U.S. 187, 200 (1996) (emphasis added). 21 Id.
17 specifically approved by the Supreme Court in South Dakota v.
Dole.22 As the Fourth Circuit recently held in adjudicating a Title
IX case under the same waiver statute that applies to the
Rehabilitation Act:
[A]ny state reading § 2000d-7(a)...would clearly understand the following consequences of accepting Title IX funding: (1) the state must comply with Title IX’s antidiscrimination provisions, and (2) it consents to resolve disputes regarding alleged violations of those provisions in federal court.23
There was simply no legal or factual justification for
applying the Fourteenth Amendment’s “knowing waiver” test in Pace
and none exists in this case; indeed, to do so is error as a matter
of law. Rather, the only proper inquiry in either case is
straightforward: Is the Rehabilitation Act’s clearly stated
condition that a state not assert sovereign immunity coercive? It
obviously is not. As previously noted by six of our fellow
circuits, the statute is clear; it contains an express condition
under Congress’s Spending Clause power for waiver of state
sovereign immunity, and there is nothing coercive about it.24
22 483 U.S. at 206. 23 Litman v. George Mason Univ., 186 F.3d 544, 554 (4th Cir. 1999). 24 See Koslow v. Pennsylvania, 302 F.3d 161, 171 (3d Cir. 2002) (holding that the Rehabilitation Act contains an “ordinary quid pro quo that the Supreme Court has repeatedly approved”); Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626, 628 (6th Cir. 2001) (holding that “a plaintiff may sue a State under Section 504 of the Rehabilitation Act” because § 2000d-7 is “a valid and unambiguous waiver”); Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000) (en banc) (holding that the statute’s clear language provided for a valid waiver of state sovereign immunity); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000) (noting that “the Rehabilitation
18 Even more to the point, it matters not one iota that the
Louisiana defendants now say, self-servingly, that they believed
they had no immunity to waive, and thus cannot be held to the
statute’s condition precedent of waiver. That is wholly illogical
and irrelevant: The only material point is that when these
defendants took the money, they had no expectation of immunity,
regardless of whether this absence of expectation resulted from
their own mistake of law (never an excuse) or from a correct
reading of the applicable federal legislation. In buying into the
Louisiana defendants’s groundless mistake of law defense, the panel
opinion in Pace relies on a Second Circuit opinion that also
impermissibly crosses jurisprudential lines in applying the
Fourteenth Amendment’s “knowing waiver” test to the Rehabilitation
Act’s condition precedent waiver, which was enacted under
Congress’s Spending Clause power. Thus, Pace would put this court
on the side of the Second Circuit in the circuit split that it
created with the six other circuits that have analyzed the
Rehabilitation Act properly as providing a waiver of state
sovereign immunity under Congress’s Spending Clause power
Act is enforceable in federal court against recipients of federal largess”); Sandoval v. Hagan, 197 F.3d 484. 493 (11th Cir. 1999) (holding that the terms of the Rehabilitation Act provide for a “clear” waiver of state sovereign immunity under the Spending Clause), rev’d on other grounds, Alexander v. Sandoval, 531 U.S. 1049 (11th Cir. 2000); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997) (holding that “the Rehabilitation Act manifests a clear intent to condition a state's participation on its consent to waive its Eleventh Amendment immunity”).
19 simpliciter.25
Either way, though, the Louisiana defendants made a conscious
—— “knowing” —— choice (1) to accept the federal funds and, (2)
vis-à-vis those funds, to be subject to the Rehabilitation Act and
to a lawsuit in federal court on Rehabilitation Act claims. The
Louisiana defendants’s acceptance of the funds pursuant to the
clear wording of the statute triggered the Rehabilitation Act’s
waiver of state sovereign immunity. Thus, they cannot now assert
—— nor at any time after the 1986 enactment of § 2000d-7 could they
ever have asserted —— sovereign immunity against Rehabilitation Act
claims.
For these reasons, I specially concur in the decision of the
panel majority if, in the final analysis, Pace should become
binding precedent; otherwise, I respectfully dissent. Either way,
though, I remain in fundamental disagreement with the reasoning and
testing methodology of the panel opinion in Pace and thus with the
panel majority’s opinion here based on Pace. If, however, a
majority of the judges in active service on this court agree to
rehear Pace en banc, and the en banc court then decides Pace as I
advocate in this opinion, the instant case will be returned to this
25 Compare supra note 24 (listing six circuit opinions analyzing the Rehabilitation Act and § 2000d-7 under the proper Spending Clause test) and note 18 (identifying another Ninth Circuit case that explicitly makes the same point as here) with Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98 (2d Cir. 2001).
20 panel for correction. Otherwise, it shall be up to the Supreme
Court to right the wrong that I perceive in Pace and thus in the
panel majority’s reliance on it here.