Torres v. Tourism Co.

• Court: Court of Appeals for the First Circuit
• Decided: April 6, 1999
• Docket: 98-1908
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1908



                RUSSELL A. TORRES AND IDA CLAUDIO,



                      Plaintiffs, Appellees,



                                v.



                   PUERTO RICO TOURISM COMPANY,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



        [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


Before



                      Selya, Circuit Judge,

             Coffin and Cyr, Senior Circuit Judges.


Jose R. Perez-Hernandez for appellant.

     Erick Morales for appellees.


April 6, 1999


COFFIN, Senior Circuit Judge.  This lawsuit involves

claims brought under the Americans with Disabilities Act ("ADA"),

42 U.S.C.   12101-12213, and several Puerto Rico statutes.  The

defendant-appellant, the Puerto Rico Tourism Company ("the Tourism

Company"), claims that the district court erred in refusing to

dismiss the case in light of the Eleventh Amendment, which protects

states from suit in federal court.  We conclude that, in the face

of an explicit statutory provision abrogating Eleventh Amendment

immunity in ADA cases and the absence of a meaningful challenge to

the validity of that abrogation, the court's judgment on the ADA

claim should be affirmed.  We remand, however, for the district

court to consider whether the pendent Puerto Rico claims benefit

from a similar abrogation of Eleventh Amendment immunity. If not,

those claims must be dismissed.

                          I. Discussion

  The facts underlying plaintiffs' claims play no role in

this appeal, and we therefore note only in passing that the case

concerns an employee's contention that he suffered injury from

exposure to second-hand cigarette smoke while working for the

Tourism Company as a casino inspector.  Our disposition instead

involves  procedural aspects of the case, particularly defendant's

failure to address in a timely or meaningful manner the express

abrogation of the Eleventh Amendment contained in the ADA.  We

begin by relating in some detail the travel of the case in the

district court, pause for a review of Eleventh Amendment

principles, and then pick up the proceedings on appeal.

     A. The Litigation Starts.

     Plaintiffs filed their complaint in August 1995 and an

answer was filed in October of the same year.  No reference was

made in either document to the Eleventh Amendment, the ADA's

express abrogation provision, or the power of Congress to abrogate

a state's immunity.  The only arguably relevant reference was the

inclusion, in a list of ten "affirmative defenses," of an item

reading "Lacks [sic] of subject matter jurisdiction."

     About two years after the time period for filing

dispositive motions had passed, and apparently as a result of a

change of counsel, defendant in May 1998 filed a motion for summary

judgment asserting, inter alia, that the complaint was barred by

the Eleventh Amendment, which prohibits suit by private parties

against a state in federal court, without that state's consent. 

The motion focused on the Tourism Company's status as an

"instrumentality" of the state and its consequent entitlement to

Eleventh Amendment protection.

     Plaintiffs responded by arguing that the motion should be

denied as late.  The district court agreed and issued the following

order:

     This motion is ordered stricken from the

     record as untimely and because it constitutes

     a violation of the Court's case management

     orders.  Any further attempts to file untimely

     dispositive motions will be subject to

     sanctions.



     The Tourism Company sought reconsideration, repeating its

earlier Eleventh Amendment argument, and, in a response that was

styled as a motion for sanctions, the plaintiffs argued that the

Eleventh Amendment immunity was patently inapplicable based on the

statutory definition of employer in the ADA, which excluded the

United States but not state governments.  The district court denied

the defendant's request for reconsideration without comment, and 

denied the motion for sanctions without prejudice to renew once any

appeal is decided.



     B. Eleventh Amendment Basics.

     At this juncture, some basic tenets of Eleventh Amendment

jurisprudence need to be articulated to give context to the

proceedings in both the district court and on appeal.  First, it is

well established that the principles of the Eleventh Amendment are

fully applicable to the Commonwealth of Puerto Rico.  See In re San

Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940, 942 (lst

Cir. 1989).  The Eleventh Amendment immunity extends to any entity

that is an "arm of the state," id., and this court has ruled that

the Tourism Company falls within that category, see id. at 943. 

Our starting place, therefore, is that   as the Tourism Company

argued in its summary judgment motion   the Eleventh Amendment

would bar a suit by a private individual against the Tourism

Company, unless the Tourism Company agreed to be sued.  See id. at

942; see also Edelman v. Jordan, 415 U.S. 651, 671-73 (1974). 

Neither party has argued that consent has been given in this case.

     Congress, however, has the power to abrogate the Eleventh

Amendment's immunity if two conditions are met. Seminole Tribe of

Florida v. Florida, 116 S. Ct. 1114, 1123 (1996).  First, there

must be a "clear legislative statement" of Congress's intent to do

so.  Id.  Second, its attempt to abrogate must have been done under

proper constitutional authority, which only has been held to exist

under  5 of the Fourteenth Amendment.  Id.  at 1124-28.  See City

of Boerne v. Flores, 117 S. Ct. 2157, 2162-72 (1997) (clarifying

Congress's enforcement powers under the Fourteenth Amendment);

Katzenbach v. Morgan, 384 U.S. 641, 649-51 (1966) (describing test

for determining whether a statute is "appropriate legislation" to

enforce the Equal Protection Clause).

     The first half of the Seminole Tribe test is easy to

apply in the ADA context.  As we have noted, see supra at note 1,

the statute unquestionably includes a clear statement of intent.  

The second prong   Congress's power to abrogate   is the subject of

some debate, although all but one of the circuits that have decided

the issue have concluded that the ADA was properly enacted under

Congress's Fourteenth Amendment enforcement powers.  Compare Kimelv. Florida Bd. of Regents, 139 F.3d 1426, 1428 n.1, 1433 (llth Cir.

1998); Coolbaugh v. Louisiana, 136 F.3d 430, 438 (5th Cir. 1998);

Clark v. California, 123 F.3d 1267, 1269-70 (9th Cir. 1997);

Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 487 (7th

Cir. 1997) with Brown v. North Carolina Div. of Motor Vehicles, 166

F.3d 698 (4th Cir. 1999).

     Several district courts also have reached the contrary

conclusion, however, see, e.g., Garrett v. Board of Trustees, 989

F. Supp. 1409, 1410 (N.D. Ala. 1998); Nihiser v. Ohio E.P.A., 979

F. Supp. 1168, 1176 (S.D. Ohio 1997), and the uncertainty on this

issue is reflected in several other ways: the panels in Kimel,

Coolbaugh and Brown were split, and an en banc rehearing in an

Eighth Circuit case ended with an evenly divided vote of the court,

see Autio v. AFSCME, Local 3139, 157 F.3d 1141 (8th Cir. 1998) (on

rehearing of 140 F.3d 802 (8th Cir. 1998)).  Finally, the Supreme

Court has granted certiorari in Kimel.  See 119 S. Ct. 901, 902

(1999).

     Also of relevance here is that the traditional waiver

rules do not always apply in Eleventh Amendment cases.  Because the

Amendment deprives federal courts of jurisdiction to entertain

claims against states, the immunity may be raised at any point in

a proceeding, including for the first time on appeal. See Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n.8 (1983).  The

Tourism Company did not make reference to the Eleventh Amendment as

a defense in its answer to the complaint, and raised the issue

beyond the time period allotted for dispositive motions.  Because

of the Amendment's jurisdictional reach, however, it trumped

ordinary procedural requirements.  When the immunity was raised in

the summary judgment motion, the district court should have

addressed it.  Instead, it rejected the defense on timeliness

grounds.

     Failure to raise the Eleventh Amendment at the outset of

the case was not, however, the Tourism Company's only default. 

Despite the explicit statement of abrogation in the ADA and the

percolating caselaw on Congress's authority to abrogate, neitherparty made reference to the abrogation provision in the district

court.  As noted supra, the plaintiffs argued in their motion for

sanctions that Eleventh Amendment immunity was inapplicable based

solely on the statute's definition of employer.  The neglect

continued on appeal.

     C. The appellate proceedings.

     In its opening brief to this court, appellant Tourism

Company recognized that Congress has the power to abrogate the

Eleventh Amendment immunity, but incorrectly stated that "[t]here

is no constitutional or statutory precept pertaining to a waiver of

the Eleventh Amendment immunity in cases pertaining to the ADA." 

In a footnote, the Tourism Company asserted that "[t]he courts that

have considered whether the Americans with Disabilities Act of 1990

may contain an implicit abrogation of the Eleventh Amendment

immunity have disfavored the contention."  (Emphasis added.)  There

was no acknowledgment that the ADA contained an explicit abrogation

provision and, obviously, no discussion of whether Congress had the

power to enact it.

     The provision was finally noted in the plaintiffs-

appellees' six-page brief, where it was offered as a conclusive

answer to the defendant's belated assertion that the Eleventh

Amendment required the lawsuit to be dismissed.  In short, up to

this time, the Eleventh Amendment theme had developed two threads:

first, the defendant's theory that the Amendment operates to bar

suits against states and their instrumentalities, including the

Tourism Company, and, second, the plaintiffs' theory that the ADA

contains an explicit abrogation of the immunity, permitting the

suit to go forward against the Tourism Company.

     In its reply brief, for the first time in the case, the

Tourism Company made direct reference to caselaw addressing whether 

Congress had the authority to enact the abrogation provision in the

ADA.  The "discussion," however, consumed roughly one page and the

three district court cases on point that were cited all supported

defendant's assertion that "[a]lready courts have held that

Congress has no authority to create a special protection for

disabled individuals under ADA through the Fourteenth Amendment." 

There was no reference to the nearly uniform line of circuit cases

upholding the provision, no discussion of the differing views of

the divided courts, and no consideration of the recent Supreme

Court decision clarifying Congress's Fourteenth Amendment

enforcement powers, City of Boerne, 117 S. Ct. at 2162-72.  At oral

argument, counsel did finally acknowledge that the weight of

authority was against his client. 

     In sum, the Tourism Company did not mention the

abrogation provision until its reply brief, and at no time did it

provide developed analysis of Congress's authority to abrogate.  We

are therefore presented not with the issue of whether the Tourism

Company waived its Eleventh Amendment immunity, but rather of

whether it waived its argument that the ADA's abrogation provision

exceeded Congress's powers.  Although the Eleventh Amendment

defense itself cannot be waived, we decline in the circumstances of

this case to extend this exception from ordinary waiver rules to

reach arguments that Congress lacked Fourteenth Amendment authority

to abrogate the immunity.  We believe that, when comprehensive

civil rights legislation includes an explicit waiver and dominant

precedent almost uniformly upholds Congress's power to do so, the

failure to challenge that authority may be deemed consent to

federal jurisdiction.  While a state's later effort to withdraw

consent might in some circumstances prove compelling, we are

particularly unwilling to indulge eleventh-hour maneuvering when

this previously forsaken argument is raised without meaningful

argumentation.

     In sum, because the issue of the constitutionality of the

ADA's statutory abrogation was raised belatedly and inadequately,

we hold that it was doubly waived.  See Nichols v. Cadle Co., 139

F.3d 59, 64 (lst Cir. 1998) ("[T]he . . . objection . .. . has been

waived twice over, first by omitting to call it to the attention of

the district judge . . . and then by failing to include the point

in the . . . opening brief in this court."); United States v.

Zannino, 895 F.2d 1, 17 (lst Cir. 1990) ("It is not enough merely

to mention a possible argument in the most skeletal way, leaving

the court to do counsel's work . . . .").

     D. Pendent Commonwealth Claims.  Neither party discusses

in its briefs the relationship between the Eleventh Amendment and

the pendent Puerto Rico claims.  In Pennhurst, 465 U.S. at 121, the

Supreme Court stated that "[a] federal court must examine each

claim in a case to see if the court's jurisdiction over that claim

is barred by the Eleventh Amendment."  The Court explicitly held

that this principle applied to pendent state-law claims.

     As noted earlier, the Tourism Company's invocation of the

Eleventh Amendment immunity in its motion for summary judgment

should not have been rejected as untimely by the district court. 

Although we have held that the ADA's explicit abrogation provision

negates that immunity for the ADA claim, that provision does not

cover the Commonwealth claims.  Unless plaintiffs are able to

demonstrate abrogation of the immunity for those claims, the claims

must be dismissed without prejudice on Eleventh Amendment grounds. 

That issue is best left to the district court in the first

instance, and, indeed, we leave to its determination as well

whether plaintiffs have waived any abrogation argument as to those

claims.

                          II. Conclusion

     The district court erroneously rejected the Tourism

Company's defense that the Eleventh Amendment barred plaintiffs'

suit on the ground that the argument was asserted too late. 

Nonetheless, the court's judgment that the ADA claim may proceed is

sustainable, as the Company failed in a timely or adequate way to

challenge the explicit statutory provision abrogating the Eleventh

Amendment immunity.  No attention was given, however, to the

plaintiffs' Puerto Rico claims, which may not proceed unless an

equivalent abrogation provision exists or the Commonwealth consents

to suit on those claims.  The Puerto Rico claims therefore must be

remanded for either dismissal or action establishing their

viability.

     For the foregoing reasons, the judgment of the district

court is affirmed in part and vacated in part, and the case is

remanded for further proceedings consistent with this opinion.

     Affirmed in part, vacated and remanded in part.  Each

party to bear its own costs.   Plaintiffs' motion requesting 

damages and costs is denied.