McCarthy Ex Rel. Travis v. Hawkins , 381 F.3d 407 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 2, 2004
August 11, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-50608
CHRISTY MCCARTHY, By and through her next friend Jamie
Travis; TODD GORDON, By and through his next friend Trisha
Gordon; ALLISON PRATT, By and through her next friend Paula
Pratt; GAIL TRUMAN, By and through her next friend Ken
Truman; JIM FLOYD, JR, By and through his next friend Jim
Floyd, Sr; SAM LINDSAY, By and through his next friend Betty
Lindsay; OSHEA BROOKS; JOE RAY COMACHO; MICHA CHASTAIN, By
and through his next friend Lori Chastain; AL, By and
through his next friend LL; ARC OF TEXAS, On behalf of its
members and for those similarly situated; SUE ANN ORTIZ;
PATRICK SOSTACK, By and through their parents and next
friends Gary and Lisa Sostack; SCOTT SOSTACK, By and through
their parents and next friends Gary and Lisa Sostack; SHYAN
FOROUGH, By and through his parents and next friends Reza
and Arzu Forough; DAVID ZWEIFEL, By and through his parents
and next friends Linda and Leroy Zweifel; ASHTON BOWLEN, By
and through her mother and next friend Patricia Bowlen;
TYLER BLANCHARD, By and through his mother and next friend
Faith Blanchard; GARRETT GILLARD, By and through his mother
and next friend Keeya Gillard; KAMERON LANE, By and through
his mother and next friend Angie Lane; MADISON POLK, By and
through her father and next friend John Polk; PAIGE SMITH,
By and through her mother and next friend Gretta Smith
Plaintiffs - Appellees
v.
ALBERT HAWKINS, Etc.; ET AL
Defendants
ALBERT HAWKINS, In his official capacity as Commissioner of
the Texas Health and Human Services Commission;
KAREN F HALE, In her official capacity as Commissioner of
the Texas Department of Mental Health & Mental Retardation;
JAMES R HINE, In his official capacity as Commissioner of
the Texas Department of Human Services
Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.
KING, Chief Judge:
Plaintiffs sued several Texas state officials, asserting
violations of the Medicaid statute, the Americans with
Disabilities Act, and the Rehabilitation Act. Relying in part on
state-sovereign immunity, Defendants moved the district court to
dismiss Plaintiffs’ claims. The district court denied
Defendants’ motion in part, concluding that the doctrine of Ex
parte Young, 209 U.S. 123 (1908), provided jurisdiction over this
official-capacity suit seeking prospective relief against state
officers. Disappointed, Defendants filed this interlocutory
appeal, seeking to vindicate their Eleventh Amendment immunity
from suit. We agree with the district court that state officers,
sued in their official capacities for prospective relief, are
proper defendants under Title II of the Americans with
Disabilities Act and are not immune under the Eleventh Amendment.
Further, we hold that Defendants’ other contentions on appeal
relate to the merits of this controversy, not the Eleventh
Amendment; therefore, these arguments are beyond the scope of
this interlocutory appeal. We affirm.
I. Background
2
Plaintiffs are twenty-one mentally disabled Texas residents
(most of whom sue through their next friends) and the Arc of
Texas (a nonprofit organization that advocates for the rights of
individuals with mental disabilities). In September 2002, they
brought this action, on behalf of themselves and all others
similarly situated,1 against Defendants. Defendants are three
Texas state officers sued in their official capacities as
Commissioners of the Texas Health and Human Services Commission,
the Texas Department of Human Services, and the Texas Department
of Mental Health and Mental Retardation.2 Plaintiffs allege that
Defendants are not adequately providing community-based living
options to individuals, like themselves, with mental retardation
and other developmental disabilities.
The programs to which Plaintiffs seek access are offered by
Texas as part of its Medicaid plan. Title XIX of the Social
Security Act established Medicaid, a cooperative federal-state
program that provides federal funding to states that furnish
medical services to needy individuals. See 42 U.S.C. §§ 1396-
1396v (2000); Frew v. Hawkins, 124 S. Ct. 899, 901 (2004). While
state participation is voluntary, if a state elects to join the
program, it must administer a state plan that meets federal
1
Plaintiffs filed a motion for class certification,
which is still pending in the district court.
2
We also refer to Defendants collectively as “Texas” or
“the State.”
3
requirements. See 42 U.S.C. § 1396a(a) (describing the required
contents of a state plan); Frew, 124 S. Ct. at 901. States can,
however, obtain certain waivers, which allow them to deliver
experimental services under a relaxed set of regulatory
strictures. One such waiver permits states to offer home and
community-based services for disabled individuals who would
otherwise require institutional care. See 42 U.S.C.
§ 1396n(c)(1). Under a § 1396n(c) waiver, certain obligations
that otherwise attach to states’ provision of Medicaid services
are waived, and participating states may obtain federal
reimbursement for services that would not normally be
reimbursable under the Medicaid program. See id. § 1396n(c)(3)
(detailing the requirements that may be waived under a § 1396n(c)
waiver); id. § 1396n(c)(4)(B) (explaining the services that may
be provided under a § 1396n(c) waiver).
Plaintiffs’ claims center on two § 1396n(c) waiver programs
offered by Texas for mentally disabled individuals. First, the
Home and Community-Based Waiver Services program (the “HCS”
program) provides services that enable individuals with mental
retardation to remain at home, live independently, or live in
small home-like settings. The HCS program thereby helps those
individuals avoid institutional living environments. Second, the
Community Living Assistance and Support Services waiver program
(the “CLASS” program) provides similar assistance to individuals
with other developmental disabilities.
4
II. Proceedings in the District Court
Plaintiffs’ second amended complaint alleges that Defendants
have denied them access to the HCS and CLASS programs. According
to Plaintiffs, this denial of access violates several provisions
of federal law--namely, (1) four subsections of the federal
Medicaid statute, including its due process provision (i.e.,
§ 1396a(a)(3)3), and its implementing regulations; (2) Title II
of the Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12131-12165 (2000), and its implementing regulations;
(3) § 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C.A. § 794(a) (West 1999 & Supp. 2004), and its implementing
regulations; and (4) the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. Plaintiffs assert causes of action
under 42 U.S.C. § 1983, Title II, and § 504, and they seek
declaratory and injunctive relief.
Defendants moved to dismiss under Rule 12(b)(6) and Rule
12(b)(1), contending that several of Plaintiffs’ claims failed to
state a claim upon which relief could be granted and asserting
Eleventh Amendment immunity from the entire suit. In May 2003,
the district court granted Defendants’ motion in part and denied
it in part. The district court dismissed, for failure to state a
3
According to this subsection, a state’s Medicaid plan
must “provide for granting an opportunity for a fair hearing
before the State agency to any individual whose claim for medical
assistance under the plan is denied or is not acted upon with
reasonable promptness.” 42 U.S.C. § 1396a(a)(3).
5
claim, Plaintiffs’ Due Process and Equal Protection claims.
Similarly, the court dismissed, for failure to state a claim, all
but one of Plaintiffs’ § 1983 claims regarding alleged
infringements of the Medicaid statute, concluding that only the
due process provision in § 1396a(a)(3) was enforceable under
§ 1983.4 Concerning Plaintiffs’ Title II and § 504 causes of
action, the court ruled that Plaintiffs’ complaint did state
actionable claims under each statute. Further, since Plaintiffs
sued state officers for prospective relief, the court relied on
the doctrine of Ex parte Young in holding that the Eleventh
Amendment did not bar Plaintiffs’ Title II and § 504 claims.
In sum, the district court allowed three of Plaintiffs’
causes of action to proceed: (1) their § 1983 claim based on
violations of the due process provision of the Medicaid statute
(§ 1396a(a)(3)); (2) their Title II claim; and (3) their § 504
claim. Defendants appeal from that portion of the district
court’s May 2003 order that denied their motion to dismiss on the
basis of Eleventh Amendment immunity. Under the collateral order
doctrine, this court has jurisdiction over an interlocutory
appeal from a denial of a motion to dismiss asserting Eleventh
4
While the district court did not expressly discuss
Defendants’ Eleventh Amendment-immunity defense to Plaintiffs’
surviving § 1983 claim (for violation of § 1396a(a)(3)), since
this claim was not dismissed, the court must have rejected that
defense, probably believing that this claim was also permissible
under Ex parte Young. On appeal, Defendants do not complain
about this omission from the district court’s opinion.
6
Amendment immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144-45 (1993). In November 2003, this
court granted the United States’s unopposed motion to intervene
on behalf of Plaintiffs.5
III. Standard of Review
This court reviews denials of Eleventh Amendment immunity de
novo. Cozzo v. Tangipahoa Parish Council--President Gov’t, 279
F.3d 273, 280 (5th Cir. 2002).
IV. Texas’s Entitlement to Eleventh Amendment
Immunity From Suit
The Eleventh Amendment has been interpreted by the Supreme
Court to bar suits by individuals against nonconsenting states.
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363
(2001). In addition, the principle of state-sovereign immunity
generally precludes actions against state officers in their
official capacities, see Edelman v. Jordan, 415 U.S. 651, 663-69
(1974), subject to an established exception: the Ex parte Young
doctrine. Under Ex parte Young, “a federal court, consistent
with the Eleventh Amendment, may enjoin state officials to
conform their future conduct to the requirements of federal law.”
Quern v. Jordan, 440 U.S. 332, 337 (1979). Here, the district
court relied on the Ex parte Young exception in ruling that the
Eleventh Amendment does not bar Plaintiffs’ claims.
5
We refer to the United States as “the government” in
this opinion.
7
A. The Parties’ Contentions
Texas maintains that a plaintiff may not proceed under Ex
parte Young unless she asserts a violation of a federal right
that arises from a valid federal law that is enforceable against
the defendant state. In Texas’s view, Plaintiffs’ § 1983, Title
II, and § 504 claims do not satisfy these prerequisites to an Ex
parte Young action because none alleges a violation of a valid
federal right that is enforceable against Defendants. Texas
presents four arguments on appeal. First, Texas contends that
the district court incorrectly determined that Plaintiffs can
enforce the due process provision of the federal Medicaid law,
§ 1396a(a)(3), under § 1983. Second, Texas asserts that an
action cannot be brought under Ex parte Young to enforce Title II
of the ADA, since a state officer is not a proper defendant under
Title II. Third, the State argues that Congress lacked the power
under either § 5 of the Fourteenth Amendment or the Commerce
Clause to enact the substantive requirements in Title II and that
Title II violates the Tenth Amendment. Fourth, Texas maintains
that § 504 of the Rehabilitation Act is unconstitutional as
applied to Defendants because it violates the relatedness
requirement imposed on Spending Clause legislation in South
Dakota v. Dole, 483 U.S. 203, 207 (1987). Accordingly, Texas
contends that state-sovereign immunity bars Plaintiffs’ suit
because Plaintiffs have not alleged a violation of any valid
8
federal law.
Plaintiffs and the government respond that Texas is
attempting impermissibly to broaden the scope of this
interlocutory appeal. By articulating these “prerequisites” to
an Ex parte Young suit, they assert, the State invites this court
to reach the merits of Plaintiffs’ claims and Defendants’
defenses to liability. Instead, Plaintiffs argue, this court
must limit its review to whether the district court correctly
concluded that Texas’s Eleventh Amendment immunity from suit does
not bar it from hearing Plaintiffs’ § 1983, Title II, and § 504
claims. Accordingly, Plaintiffs and the government maintain that
this court should refuse to consider all but one of Texas’s
arguments, i.e., its contention that an Ex parte Young suit
cannot be brought to enforce Title II.
Since Plaintiffs and the government concede that Texas’s
second contention is an appropriate subject of consideration in
this interlocutory appeal, we address this argument first.
B. Whether state officers are proper defendants under Title II
Title II provides in relevant part that “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132 (2000). The State asserts that the district court erred
9
in denying it Eleventh Amendment immunity from Plaintiffs’ cause
of action under Title II because a claim cannot be brought under
Ex parte Young to enforce that statute. Texas maintains that a
state officer is not a proper defendant under Title II; only
public entities can be sued under the statute. Thus, since Ex
parte Young only allows suits against state officers, Texas
reasons that Plaintiffs’ Title II claims must be dismissed. In
response, Plaintiffs and the government argue that Title II can
be enforced through suits for prospective relief against state
officers, even though the substantive requirements of the statute
apply only to public entities, because a suit against a state
officer in her official capacity is really a suit against the
state agency itself.
Texas’s contention presents an issue of first impression in
this circuit. The State relies primarily on the Seventh
Circuit’s opinion in Walker v. Snyder, 213 F.3d 344 (7th Cir.
2000).6 In Walker, the court held that a plaintiff could not
6
Texas also cites Lewis v. N.M. Dep’t of Health, 94 F.
Supp. 2d 1217 (D.N.M. 2000). There, the court held that an Ex
parte Young action could not be maintained under Title II because
state officials are not proper defendants under the statute. Id.
at 1230. Without engaging in much analysis, the court relied on
one circuit court opinion involving state officers sued in their
individual capacities, see Alsbrook v. City of Maumelle, 184 F.3d
999, 1005 n.8 (8th Cir. 1999) (en banc), and several district
court decisions. Lewis, 94 F. Supp. 2d at 1230. While the Lewis
court’s judgment was upheld on appeal, the Tenth Circuit did not
pass on this holding, since the plaintiffs had dropped their ADA
claim. Lewis v. N.M. Dep’t of Health, 261 F.3d 970, 975 (10th
Cir. 2001).
10
bring an Ex parte Young suit to enforce Title II because the only
proper defendant “is the public body as an entity.” Id. at 347.
But Walker, decided in 2000, has been undermined by the Supreme
Court’s subsequent statement in Garrett that Title I of the ADA
could be enforced in an Ex parte Young action. Garrett, 531 U.S.
at 374 n.9. Indeed, the Seventh Circuit has disavowed Walker’s
holding on this issue, concluding that it “did not survive”
Garrett. Bruggeman v. Blagojevich, 324 F.3d 906, 912-13 (7th
Cir. 2003). Even though Walker has been abrogated, Texas still
contends this court should follow that decision, since the remark
from Garrett that the Bruggeman court relied on was dictum.
Although the Court’s comment in Garrett was not essential to
the judgment, the courts of appeals have been unanimous in
rejecting arguments that state officers cannot be sued for
prospective relief in their official capacities for violations of
Title II.7 In addition to this substantial authority from other
7
See Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d
Cir. 2003) (refusing to “embrace the state defendant’s statutory
claim that an individual sued in his or her official capacity
under the doctrine of Ex parte Young is not a ‘public entity’
subject to liability” under Title II and explaining that, “[t]he
real party in interest in an official-capacity suit is the
government entity. As a result, it is irrelevant whether the ADA
would impose individual liability on the officer sued; since the
suit is in effect against the ‘public entity,’ it falls within
the express authorization of the ADA.” (citation omitted));
Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003)
(following “the Sixth, Seventh, and Eighth Circuits in holding
that Title II’s statutory language does not prohibit [the
plaintiff’s] injunctive action against state officials in their
official capacities”); Bruggeman, 324 F.3d at 912-13; Carten v.
Kent State Univ., 282 F.3d 391, 396-97 (6th Cir. 2002) (holding
11
circuits, Supreme Court precedent makes clear that “a suit
against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the
official’s office.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989); accord Kentucky v. Graham, 473 U.S. 159,
165-66 (1985) (“Official-capacity suits . . . generally represent
only another way of pleading an action against an entity of which
an officer is an agent. As long as the government entity
receives notice and an opportunity to respond, an
official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity. It is not a suit against
the official personally, for the real party in interest is the
entity.” (citations and internal quotation marks omitted)). Only
for the purposes of the Eleventh Amendment are “official-capacity
actions for prospective relief . . . not treated as actions
against the State.” Graham, 473 U.S. at 167 n.14 (citing Ex
parte Young).
We thus join the Second, Sixth, Seventh, Eighth, and Ninth
Circuits in holding that Plaintiffs’ Ex parte Young suit to
that “an official who violates Title II of the ADA does not
represent ‘the state’ for purposes of the Eleventh Amendment, yet
he or she nevertheless may be held responsible in an official
capacity for violating Title II”); Randolph v. Rodgers, 253 F.3d
342, 348 (8th Cir. 2001) (citing Garrett’s dictum and refusing to
accept the contention that “because the statutory language of the
ADA provides only for ‘public entity’ liability, an Ex parte
Young claim against the state officials in their official
capacities, premised upon an ADA violation, must fail”).
12
enforce Title II can proceed; Defendants have been sued in their
official capacities and are therefore representing their
respective state agencies (which are proper Title II defendants)
for all purposes except the Eleventh Amendment.8
C. Texas’s other arguments on appeal
When stripped of their Eleventh Amendment gloss, Texas’s
three remaining arguments essentially target the merits of
Plaintiffs’ claims, rather than Plaintiffs’ reliance on the
doctrine of Ex parte Young to establish jurisdiction. As we will
see, these defenses to liability are beyond the scope of this
interlocutory appeal from a denial of Eleventh Amendment immunity
from suit. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 144
8
Texas, relying on Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996), also suggests that Title II’s use of the
phrase “public entity” evidences Congressional intent to preclude
Ex parte Young actions to enforce the Act. But Seminole Tribe
provides no comfort to the State. There, the Court merely
explained that, “where Congress has prescribed a detailed
remedial scheme for the enforcement against a State of a
statutorily created right, a court should hesitate before casting
aside those limitations and permitting an action against a state
officer based upon Ex parte Young.” Id. at 74 (emphasis added).
Here, Plaintiffs do not seek under Ex parte Young any remedies
that have been limited by the terms of Title II. In addition, at
least two other circuits have specifically rejected arguments,
based on Seminole Tribe, that Congress intended to preempt Ex
parte Young actions to enforce Title II. See Henrietta D., 331
F.3d at 289 (“In our view, Seminole Tribe does not bar Ex parte
Young relief under Title II against a state official in her
official capacity. Neither § 504 nor Title II displays any
intent by Congress to bar a suit against state officials in their
official capacities for injunctive relief, nor does either create
a remedial scheme so elaborate that it could be thought to
preclude relief under Ex parte Young.”); Miranda B., 328 F.3d at
1188-89.
13
(explaining that the Eleventh Amendment “confers an immunity from
suit”).
1. The constitutionality of Title II and § 504
We first turn to Texas’s contentions that Congress lacked
the power to enact the substantive provisions of Title II and
§ 504. The State provides no authority for its assertion that a
federal court must determine the constitutionality of a federal
law in the course of determining the applicability of the Ex
parte Young exception. Instead, the State misleadingly quotes
the Supreme Court’s opinion in Gonzaga University v. Doe for the
proposition that, “[a]s a prerequisite to bringing a Young suit,
. . . ‘a plaintiff must assert the violation of a federal right,
not merely a violation of federal law.’” Texas Br. at 13
(quoting Doe, 536 U.S. 273, 282 (2002)). But this passage in Doe
involved the prerequisites for stating a claim under § 1983, not
the requirements for avoiding an Eleventh Amendment defense to
suit through the vehicle of an Ex parte Young action.9 Texas
relies heavily on this misinterpretation of Doe in contending
that Plaintiffs cannot proceed under Ex parte Young unless this
9
The full sentence from the opinion reads, “We
emphasized: ‘[T]o seek redress through § 1983, . . . a plaintiff
must assert the violation of a federal right, not merely a
violation of federal law.’” Doe, 536 U.S. at 282 (quoting
Blessing v. Freestone, 520 U.S. 329, 340 (1997)) (alterations in
original) (first emphasis added). Of course, Plaintiffs’ Title
II and § 504 claims do not arise under § 1983; both Title II and
§ 504 are enforceable directly through private causes of action.
See Barnes v. Gorman, 536 U.S. 181, 185 (2002).
14
court first determines that their claims rely on federal laws
that are both constitutional and enforceable against the State.
But Texas simply provides no support for its contention that a
court must determine the validity of a plaintiff’s cause of
action in the course of deciding whether an Ex parte Young suit
can proceed in the face of a state’s Eleventh Amendment defense.
Texas’s broad understanding of the scope of this
interlocutory appeal is not only unprecedented, more importantly,
it flies in the face of the Supreme Court’s reasoning in Verizon
Maryland, Inc. v. Public Service Commission, 535 U.S. 635 (2002).
There, Verizon brought suit in federal district court, seeking
relief from an order of the Maryland Public Service Commission.
Id. at 640. Verizon alleged that the Commission’s order violated
federal law. Id. In ruling that the district court lacked
jurisdiction to hear Verizon’s action, the Fourth Circuit held,
inter alia, that the Eleventh Amendment did not permit Verizon to
sue individual commissioners in their official capacities. Id.
In the words of the Supreme Court, the “Fourth Circuit suggested
that Verizon’s claim could not be brought under Ex parte Young,
because the Commission’s order was probably not inconsistent with
federal law after all.” Id. at 646. The Court swiftly rejected
this reasoning, noting that “the inquiry into whether suit lies
under Ex parte Young does not include an analysis of the merits
of the claim.” Id. (emphasis added). On the contrary, the Court
explained that “[i]n determining whether the doctrine of Ex parte
15
Young avoids an Eleventh Amendment bar to suit, a court need only
conduct a ‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’” Id. at 645 (quoting
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)
(O’Connor, J., concurring in part and concurring in the
judgment)) (alteration in original); see also Coeur d’Alene, 521
U.S. at 281 (“An allegation of an ongoing violation of federal
law where the requested relief is prospective is ordinarily
sufficient to invoke the Young fiction.” (emphasis added)).
Thus, the Court made clear that analyzing the applicability of
the Ex parte Young exception should generally be a simple matter,
which excludes questions regarding the validity of the
plaintiff’s cause of action.
Texas attempts to distinguish Verizon, asserting that its
arguments contesting the constitutionality of Title II and § 504
are appropriate for consideration in this interlocutory appeal,
even though an argument that it has not violated those statutes
would not be. We are not persuaded. Like other defenses to
liability, the State’s arguments do not challenge the district
court’s power under Ex parte Young to adjudicate Plaintiffs’
claims. Rather, the State seeks to have Plaintiffs’ Title II and
§ 504 claims dismissed on the merits on the ground that the
statutes’ substantive provisions are unconstitutional; such a
disposition would not be a determination that the Ex parte Young
16
exception is inapplicable or that the Eleventh Amendment bars a
federal court from hearing Plaintiffs’ action. In other words,
resolution of the constitutional questions urged by Defendants is
irrelevant to the question whether Texas’s Eleventh Amendment
immunity from suit has been infringed. Moreover, our refusal to
consider the constitutional issues in this interlocutory appeal
comports with the rationale for allowing an interlocutory appeal
from denials of Eleventh Amendment immunity. Unlike a State’s
entitlement to Eleventh Amendment immunity from suit, the
constitutionality of Title II and § 504 can be reviewed
effectively on appeal from a final judgment. Cf. P.R. Aqueduct &
Sewer Auth., 506 U.S. at 144-45 (explaining that the question of
state-sovereign immunity is (1) conclusively determined by the
denial of a motion to dismiss, (2) completely separate from the
merits of the action, and (3) “effectively unreviewable on appeal
from a final judgment”). We consequently follow the teaching of
Verizon and hold that the constitutionality of the substantive
provisions of Title II and § 504 is beyond the scope of this
appeal.
2. The enforceability of § 1396a(a)(3) under § 1983
Finally, we consider Texas’s assertion that the Eleventh
Amendment bars Plaintiffs’ surviving § 1983 claim because the due
process provision of the Medicaid statute, § 1396a(a)(3), does
not create a federal right enforceable under § 1983. Although
couched in terms of sovereign immunity, the State’s argument on
17
this score is entirely devoted to attacking the district court’s
ruling that Plaintiffs can state an actionable claim under § 1983
to enforce § 1396a(a)(3). Even more so than Defendants’
constitutional contentions, this argument centers on the merits
of Plaintiffs’ § 1983 claim, not their use of Ex parte Young to
seek injunctive relief despite the Eleventh Amendment. Moreover,
other than their misinterpretation of Doe (which we exposed
above), Defendants provide no support for the notion that, to
determine the applicability of the Ex parte Young exception, we
must review the district court’s conclusion that a § 1983 action
can be brought to enforce § 1396a(a)(3). On the contrary, at
least one court of appeals has refused to broaden this type of
interlocutory appeal to encompass the question whether alleged
transgressions of the Medicaid statute can be vindicated under
§ 1983. See Rosie D. ex rel. John D. v. Swift, 310 F.3d 230,
233-34, 238 (1st Cir. 2002) (opining that the issue of
enforceability under § 1983 was not ripe for review). Similarly,
we will confine ourselves to the question whether Plaintiffs have
properly demonstrated jurisdiction under Ex parte Young.
D. The applicability of the Ex parte Young exception to
Eleventh Amendment immunity
Left to address the simple question whether the district
court correctly found that Plaintiffs properly have proceeded
under Ex parte Young, we agree with the district court.
Plaintiffs allege that Defendants’ failure to admit them to the
18
HCS and CLASS programs violates § 1396a(a)(3), Title II, and
§ 504. Further, they seek injunctive and declaratory relief.10
Thus, the “complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.”
Verizon, 535 U.S. at 645 (internal quotation marks omitted).
Plaintiffs have therefore satisfied the Supreme Court’s
“straightforward inquiry,” and we hold that the Eleventh
Amendment does not apply to this suit. See P.R. Aqueduct & Sewer
Auth., 506 U.S. at 146 (“Young and its progeny render the
[Eleventh] Amendment wholly inapplicable to a certain class of
suits.”).
V. Conclusion
Accordingly, we AFFIRM the order of the district court
denying that portion of Defendants’ motion to dismiss that relies
on the defense of Eleventh Amendment immunity.
10
Defendants do not contend that the relief sought by
Plaintiffs could have an impermissibly retroactive effect.
19
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
The majority opinion incorrectly concludes that the
constitutionality of the federal law underlying an Ex parte Young
suit is not properly considered as part of an Eleventh Amendment
immunity analysis. To sustain a Young suit a plaintiff must
allege an ongoing violation of valid, constitutional federal law.
As I believe that Title II of the ADA was enacted beyond
Congress’s legislative authority, I would hold that the
plaintiffs in this case (“the Plaintiffs”) have failed to
establish a valid Young suit against the defendant commissioners
(“Texas”) under Title II of the Americans with Disabilities Act
(“ADA”) and that Texas is entitled to Eleventh Amendment immunity
as to that claim. However, because I believe § 504 of the
Rehabilitation Act is valid Spending Clause legislation, I would
hold that the Plaintiffs have properly alleged a Young suit under
that statute. Further, I agree with the majority opinion that
Texas’s claim that the Medicaid Act does not provide for an
individual cause of action is beyond the scope of this appeal and
should not be considered. Accordingly, I respectfully concur in
part, and dissent in part.
I
This is an interlocutory appeal of an order denying Texas’s
claim of Eleventh Amendment immunity. See Puerto Rico Aqueduct &
20
Sewer Auth. v. Metcalf & Eddy Inc., 506 U.S. 139, 147, 113 S. Ct.
684 (1993) (authorizing an interlocutory appeal of an order
denying Eleventh Amendment immunity). As there is no final order
in this case, we are limited to considering the question of
whether Texas is entitled to Eleventh Amendment immunity from the
Plaintiffs’ suit. All other issues are beyond the scope of this
appeal.
As part of this appeal, Texas challenges the
constitutionality of both Title II of the ADA and § 504 of the
Rehabilitation Act. Texas does not independently challenge the
constitutionality of these statutes, which would be beyond the
jurisdiction of this appeal. Instead, it challenges their
constitutionality as part of its assertion of Eleventh Amendment
immunity and its argument that the Plaintiffs have not properly
alleged a suit under Ex parte Young. Texas argues that because
the permissibility of a Young suit is premised on the assumption
that the defendant state official is engaging in an ongoing
violation of federal law, the question of the validity of that
federal law is a proper subject of an Eleventh Amendment immunity
analysis. I agree.
Under the Eleventh Amendment, “an unconsenting State is
immune from suits brought in federal court by [its] own citizens
as well as by citizens of another state.” Edelman v. Jordan, 415
U.S. 651, 663, 94 S. Ct. 1347 (1974). The Eleventh Amendment
21
provides states with immunity from “the indignity” of being
subjected to the “coercive process of judicial tribunals at the
instance of private parties.” Metcalf, 506 U.S. at 146 (citing
In re Ayer, 123 U.S. 443, 505, 8 S. Ct. 164 (1887)). The Supreme
Court has held that the rule that “a State may not be sued
without its consent is [such] a fundamental rule of jurisprudence
. . . that the entire judicial power granted by the Constitution
does not embrace authority to entertain a suit brought by private
parties against a State without consent given . . . .” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900
(1984) (quoting Ex parte State of New York No. 1, 256 U.S. 490,
497, 41 S. Ct. 588 (1921)) (emphasis omitted). Eleventh
Amendment immunity extends to suits against state officials in
their official capacities. See id. at 101 (A suit against a state
official “is in fact against the sovereign if the decree would
operate against the latter.”). Therefore, “a suit against [a]
state official[] that is in fact a suit against a State is barred
regardless of whether it seeks damages or injunctive relief.” Id.
at 102.
One exception to this general rule is that “a suit
challenging the constitutionality of a state official’s action is
not one against the State.” Id.; see Ex parte Young, 209 U.S.
123, 28 S. Ct. 441 (1908). Under Ex parte Young, “an
unconstitutional enactment is ‘void’ and therefore does not
22
impart to the officer any immunity from responsibility to the
supreme authority of the United States.” Pennhurst, 465 U.S. at
102 (internal quotations omitted). The Supreme Court has
recognized that there is some “irony” in the fact that “an
official’s unconstitutional conduct constitutes state action
under the Fourteenth Amendment” but does not under the Eleventh
Amendment. Id. at 105. It, however, has concluded that the
Young doctrine is “necessary to permit the federal courts to
vindicate federal rights and hold state officials responsible to
‘the supreme authority of the United States.’” Id.
The Supreme Court, however, has sought to balance the need
to hold state officials responsible to the “supreme authority of
the United States” with states’ “fundamental” right to immunity
from private suit. To achieve this balance it has thus limited
the scope of the Young exception. For example, a Young suit can
only be brought to require a state official to “conform his
future conduct of office to the requirements of” federal law, but
may not be applied retroactively. Edelman, 415 U.S. at 664; see
Verizon Maryland Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S.
635, 645, 122 S. Ct. 1753 (2002) (A Young suit requires the
plaintiff allege “an ongoing violation of federal law and seek[]
relief properly characterized as prospective.”).
In crafting this limitation, the Supreme Court has noted
that the “distinction between prospective and retroactive relief
23
fulfills the underlying purpose of Ex parte Young while at the
same time preserving to an important degree the constitutional
immunity of the States.” Pennhurst, 465 U.S. at 106. Further,
it has noted the importance of consciously balancing these two
important interests when applying the Young doctrine. See, e.g.,
id.; Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S. 261, 270,
117 S. Ct. 2028 (1997) (noting that application of Young requires
an “understanding of its role in our federal system”); see also
Verizon, 535 U.S. at 649 (Kennedy, J., concurring) (“Ex parte
Young jurisprudence requires careful consideration of the
sovereign interests of the State as well as the obligations of
state officials to respect the supremacy of federal law.”).
In Pennhurst State School & Hospital v. Halderman, the
Supreme Court held that a plaintiff cannot vindicate state rights
as part of a Young suit. Pennhurst, 465 U.S. at 106. After
reviewing the policy justifications for the Young doctrine and
noting the importance of balancing the competing interests
outlined above, the Court concluded: “This need to reconcile
competing interests is wholly absent, however, when a plaintiff
alleges that a state official has violated state law. In such a
case the entire basis for the doctrine of Young . . .
disappears.” Id. (emphasis omitted). It further concluded, “[a]
federal court’s grant of relief against state officials on the
basis of state law . . . does not vindicate the supreme authority
24
of federal law.” Id. (emphasis added); see Saahir v. Estelle, 47
F.3d 758, 761 (5th Cir. 1995) (noting that “the only legitimate
basis for federal court intervention, consistent with the
Eleventh Amendment is the vindication of federal rights”).
The Supreme Court has thus made it clear that if there are
no federal rights for the plaintiff to vindicate then the
justification for the Young exception is not present in the case
and the state’s right to Eleventh Amendment immunity should be
honored. See Pennhurst, 465 U.S. at 106. The justification for
a Young suit is also absent when the plaintiff alleges the
ongoing violation of unconstitutional or otherwise invalid
federal law. In such a case, there are no federal rights to
vindicate and there can be no prospective relief under Young.
Therefore, before we can determine whether a plaintiff seeks to
vindicate “the supreme authority of the law” and before we can
possibly balance the “sovereign interests of the State . . .
[with the] obligation[] of state officials to respect the
supremacy of federal law,” we must first determine whether the
plaintiff seeks to vindicate valid federal rights, and by
implication whether the federal law underlying the Young suit is
constitutional.
The majority opinion concludes that if we were to address
the constitutionality of the statutes underlying the Plaintiffs’
Young suit we would be impermissibly addressing the merits of
25
their claims. The Supreme Court has specifically held that “the
inquiry into whether a suit lies under Ex parte Young does not
include an analysis of the merits of the claim.” Verizon, 535
U.S. at 646, see Couer d’Alene, 521 U.S. at 281 (“An allegation
of an ongoing violation of federal law . . . is ordinarily
sufficient . . . .”).
Verizon, however, does not address the relevance of the
constitutionality of the federal law underlying the Young suit.
In Verizon, the Maryland Public Service Commission (“the
Commission”) argued that it was not subject to discipline under
the provisions of the federal statute (The Telecommunications Act
of 1996) underlying Verizon’s Young suit. See Verizon, 535 U.S.
at 646. It did not argue that the law underlying the Young suit
was unconstitutional or was otherwise not valid federal law. The
Supreme Court held that the Commission had improperly argued the
merits of the underlying claim))whether the Commission had
violated the dictates of the Telecommunications Act))as part of
its assertion of Eleventh Amendment immunity. Id. However, the
proposed constitutional inquiry in this case is not a review of
the merits of the Plaintiffs’ substantive claims))whether Texas
violated either Title II of the ADA or § 504 of the
Rehabilitation Act. Rather, it is part of the inquiry into
whether the Plaintiffs seeks to vindicate valid federal rights.
Further, the majority opinion fails to heed the Supreme
26
Court’s warning not to be held captive to the “mechanics of . . .
pleadings” and forget that our application of “the Young
exception must reflect a proper understanding of [the doctrine’s]
role in our federal system and respect for state courts instead
of a reflexive reliance on an obvious fiction.” Couer d’Alene,
521 U.S. at 270. As the Court noted, to do so “would be to
adhere to an empty formalism and to undermine the principle . . .
that the Eleventh Amendment immunity represents a real limitation
on a federal court’s federal question jurisdiction.” Id. In
blindly applying Verizon to this case, the majority opinion
ignores the policy justifications behind the Young exception and
needlessly subjects Texas to a suit in federal court without
first determining whether the Plaintiffs seek to vindicate valid
federal rights.
Additionally, there is no reason to delay resolving these
issues. The Supreme Court has emphasized the importance of
quickly resolving Eleventh Amendment claims because “the value to
the States of their Eleventh Amendment immunity . . . is for the
most part lost as litigation proceeds past motion practice.” See
Metcalf, 506 U.S. at 145. This suggests that resolving the
constitutionality of the federal law underlying the Young suit
should be completed sooner rather than later. This is
particularly true here because there is no policy reason for
delaying the resolution of these issues. The constitutionality
27
of these statutes is a purely legal question that can be resolved
without the aid of either discovery or trial. Compare Mitchell v.
Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806 (1985) (authorizing
interlocutory review of denials of qualified immunity because
“[a]ll [the court] need determine is a question of law”) and
Johnson v. Jones, 515 U.S. 304, 317, 115 S. Ct. 2151 (1995)
(“[I]mmunity appeals interfere less with the final judgment rule
if they are limited to cases presenting neat abstract issues of
law.”), with Metcalf, 506 U.S. at 147 (holding that “factual
complexities” provide no excuse for refusing to resolve a claim
of Eleventh Amendment immunity).
Further, appellate courts routinely resolve constitutional
issues in interlocutory appeals as part of determining whether
Congress has validly abrogated states’ Eleventh Amendment
immunity pursuant to their authority under § 5 of the Fourteenth
Amendment. See e.g., Reickenbacker v. Foster, 274 F.3d 974, 979
(5th Cir. 2001) (finding that Congress went beyond its § 5 powers
by abrogating states’ Eleventh Amendment immunity under Title II
of the ADA). It is similarly appropriate to resolve these
constitutional issues during this appeal.
The Government suggest that if we were to decide that the
constitutionality of these statutes is properly part of an
Eleventh Amendment immunity analysis we should remand to the
district court so that it may consider and address these issues.
28
The Supreme Court, however, has held that an “Eleventh Amendment
defense sufficiently partakes of the nature of a jurisdictional
bar [] that it need not be raised in the trial court.” See
Edelman, 415 U.S. at 678 (ruling on an Eleventh Amendment
immunity claim raised for the first time in the appellate court).
Further, as these are purely legal questions which would be
reviewed de novo in a future appeal there is no reason to remand
for a ruling by the district court.
Accordingly, I would hold that a challenge to the
constitutionality of a statute underlying a Young suit is a
proper subject of an Eleventh Amendment immunity analysis and
that consideration of such a challenge is within the scope of an
interlocutory appeal from the denial of a claim of Eleventh
Amendment immunity. Texas challenges the constitutionality of
both Title II of the ADA and § 504 of the Rehabilitation Act. As
I believe these constitutional challenge are within the scope of
this appeal, I will address the merits of Texas’s contentions.
II
Texas challenges the constitutionality of Title II of the
ADA. It argues that Title II was enacted beyond the scope of
Congress’s authority under both § 5 of the Fourteenth Amendment
and the Commerce Clause. See 42 U.S.C. § 12101(b)(4) (invoking
both Congress’s § 5 authority and Commerce Clause power in
enacting the ADA). Texas also argues that Title II improperly
29
impedes on state authority in violation of the Tenth Amendment.
A
Texas first argues that we should extend our ruling in
Reickenbacker v. Foster, 274 F.3d at 976 (holding that Title II
of the ADA was enacted beyond Congress authority under § 5 for
purposes of abrogating states Eleventh Amendment immunity), to
this case and hold that Congress acted beyond its § 5 authority
in enacting Title II. Plaintiffs and the Government argue that
Reickenbacker is not controlling because in that case we did not
engage in a full § 5 analysis. See id. at 982 n.60 (refusing to
consider Congressional findings of discrimination by local
entities in § 5 abrogation analysis because local entities cannot
assert sovereign immunity). Further they argue that our decision
in Reickenbacker has been, at least partially, superseded by the
Supreme Court’s recent decision in Tennessee v. Lane, 124 S. Ct.
1978, 1992 (2004) (finding that “extensive record of disability
discrimination” by states justified “prophylactic legislation”),
and argue that, in light of Lane, Title II’s accommodation
requirement is a “congruent and proportional” response to
irrational discrimination against the disabled by state and local
public entities.
By its own terms, Reickenbacker cannot simply be extended to
this case. In Reickenbacker, we held that Title II of the ADA
was enacted beyond the scope of Congress’s § 5 powers for
30
purposes of abrogating states’ Eleventh Amendment immunity. See
Reickenbacker, 274 F.3d at 982-83 (finding that because Congress
never established that states engaged in unconstitutional
discrimination against the disabled Title II’s “affirmative
accommodation obligation on the part of public entities” was
enacted beyond Congress’s § 5 authority); cf. Bd. of Trustees of
Univ. of Alabama v. Garrett, 531 U.S. 356, 367-68, 121 S. Ct. 955
(2001) (“States are not required by the Fourteenth Amendment to
make special accommodations for the disabled, so long as their
actions towards such individuals are rational.”).
We, however, noted that “Title II of the ADA could still be
a valid exercise of Congress’s § 5 power, but simply not provide
the . . . power to abrogate” states’ Eleventh Amendment immunity.
See Reickenbacker, 274 F.3d at 982 n.60. This limiting language
was premised on our refusal to review Congressional findings as
to discrimination by local entities as part of that § 5 analysis
because local entities cannot claim Eleventh Amendment immunity.
See id.; see also Garrett, 531 U.S. at 369 (“[Local] entities are
subject to private claims for damages under the ADA without
Congress ever having to rely on § 5 . . . . It would make no
sense to consider constitutional violations on their part, as
well as by the States themselves, when only the States are the
beneficiaries of the Eleventh Amendment.”); but see Lane, 124 S.
Ct. at 1991 n.16 (suggesting that “constitutional violations on
31
the part of nonstate governmental actors” is “relevant” to this
inquiry). In contrast, “the analysis of whether Congress has the
power to enact legislation requires [an] inquiry into
constitutional violations by [local] entities in addition to
entities entitled to Eleventh Amendment immunity.” Reickenbacker,
274 F.3d at 982 n.60 (emphasis added) (quoting Thompson v.
Colorado, 258 F.3d 1241, 1253 n.7 (10th Cir. 2001), republished
at 278 F.3d 1020). This inquiry was absent from Reickenbacker
and must be included here to determine whether Title II is proper
§ 5 legislation.
Section 5 grants Congress the power “to enforce” the
substantive guarantees of the Fourteenth Amendment through
“appropriate legislation.” Garrett, 531 U.S. at 365. In
exercising this power, Congress is not limited to remedying
violations of the substantive rights guaranteed by the Fourteenth
Amendment. See Katzenbach v. Morgan, 384 U.S. 641, 648-76, 86 S.
Ct. 1717 (1966). “Congress’ power ‘to enforce’ the Amendment
includes the authority both to remedy and to deter violation of
rights guaranteed thereunder by prohibiting a somewhat broader
swath of conduct, including that which is not itself forbidden by
the Amendment’s text.” Garrett, 531 U.S. at 365 (quoting Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 81, 120 S. Ct. 631 (2000)).
“In other words, Congress may enact so-called prophylactic
legislation that proscribes facially constitutional conduct, in
32
order to prevent and deter unconstitutional conduct.” Nevada
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727-28, 123 S. Ct.
1972 (2003).
There are limits on Congress’s power to pass prophylactic
legislation. Congress may not pass prophylactic legislation that
is in effect a “substantive redefinition of the Fourteenth
Amendment right at issue.” Id. at 728; see City of Boerne v.
Flores, 521 U.S. 507, 519, 117 S. Ct 2157 (1997) (“Congress does
not enforce a constitutional right by changing what the right
is.”). “Accordingly, § 5 legislation reaching beyond the scope
of § 1's actual guarantees must exhibit ‘congruence and
proportionality between the injury to be prevented or remedied
and the means adopted to that end.’” Garrett, 531 U.S. at 365
(quoting City of Boerne, 521 U.S. at 520).
The first step in this analysis is to identify the scope of
the constitutional right to be protected. Id. The Supreme Court
has concluded that “classifications based on disability violate
[the Fourteenth Amendment] if they lack a rational relationship
to a legitimate governmental purpose.” Lane, 124 S. Ct. at 1988;
see Garrett, 531 U.S. at 367 (“States are not required . . . to
make special accommodations for the disabled, so long as their
actions toward such individuals are rational.”). Congress thus
may seek through its § 5 power to enforce a prohibition on
“irrational disability discrimination.” Lane, 124 S. Ct. at
33
1988.11
The next step is to determine “whether Congress identified a
history and pattern of unconstitutional . . . discrimination by
the States against the disabled.” Garrett, 534 U.S. at 368. The
Supreme Court, in Tennessee v. Lane, appears to have resolved
this question. Relying almost exclusively on federal case law,
the Court concluded that “Congress enacted Title II against a
backdrop of pervasive unequal treatment in the administration of
state services and programs . . . .” Lane, 124 S. Ct. at 1989.
It found in the case law examples of irrational discrimination by
states against the disabled in the contexts of: voting; marriage;
jury eligibility; state mental institutions; zoning decisions;
public education; the penal system; and access to the judicial
system. Id. at 1989.12 The Supreme Court has thus concluded
11
In contrast, a higher standard of review may apply when
other types of classifications or rights are at issue. See e.g.,
Hibbs, 538 U.S. at 728 (“[S]tatutory classifications that
distinguish between males and females are subject to heightened
scrutiny.”); Lane, 124 S. Ct. at 1992 (“[R]ight to the access to
the courts . . . call[s] for a standard of judicial review at
least as searching . . . [as] the standard that applies in sex-
based classifications.”).
12
The Supreme Court has in the past required that Congress
itself identify a history and pattern of discrimination by
states. See Coll. Sav. Bank v. Florida Prepaid Post-secondary
Edu. Expense Bd., 527 U.S. 666, 639, 119 S. Ct. 2219 (1999)
(“[F]or Congress to invoke § 5, it must identify conduct
transgressing the Fourteenth Amendment’s substantive
provisions.”) (emphasis added); see also, Garrett, 531 U.S. at
370-72 (rejecting the use of documents that are not “legislative
findings” to establish “adverse, disparate treatment by state
officials.”). In Lane, the Supreme Court appears to have
34
that the “inadequate provision of public services and access to
public facilities [for the disabled are] appropriate subject[s]
for prophylactic legislation.” Id. at 1992.
The final step in this analysis is to determine whether
Title II is a congruent and proportional response to irrational
discrimination by states against the disabled as identified in
Lane. See Lane, 124 S. Ct. at 1992 (“The only question that
remains is whether Title II is an appropriate response to this
history and pattern of unequal treatment.”); see City of Boerne,
521 U.S. at 530. In outlining this test, the Supreme Court has
counseled: “The appropriateness of remedial measures must be
considered in light of the evil presented. Strong measures
appropriate to address one harm may be an unwarranted response to
another, lesser one.” Id. at 530. To survive scrutiny, Title II
must be tailored to remedy or prevent the “identi[fied] conduct
transgressing the Fourteenth Amendment’s substantive provisions.”
Coll. Sav. Bank v. Florida Prepaid Post-secondary Edu. Expense
Bd., 527 U.S. 666, 639, 119 S. Ct. 2219 (1999); see City of
Boerne, 521 U.S. at 520 (“There must be a congruence and
proportionality between the injury to be prevented or remedied
and the means adopted to that end.”) (emphasis added).
abandoned this requirement. See Lane, 124 S. Ct. at 1999
(Rehnquist, J. dissenting) (noting that “the majority identifies
nothing in the legislative record that shows Congress was
responding to widespread violations of the . . . rights of
disabled persons.”).
35
The Supreme Court concedes in Lane, that taken as a whole,
Title II may not be permissible § 5 legislation. See Lane, 124
S. Ct. at 1992 (“[T]he fact that Title II applies not only to
public education and voting-booth access but also to seating at
state-owned hockey rinks indicates that Title II is not
appropriately tailored to serve its objectives.”); but see id. at
1992-3 (refusing to consider the constitutionality of Title II as
a whole). This conclusion is consistent with the Supreme Court’s
case law. In finding that the Religious Freedom Restoration Act
of 1993 was not permissible § 5 legislation the Supreme Court
noted that the act’s “[s]weeping coverage ensures its intrusion
at every level of government, displacing laws and prohibiting
official actions of almost every description regardless of
subject matter.” City of Boerne, 521 U.S. at 532. Title II’s
coverage is just as sweeping. It regulates, by it own terms,
“any State or local government; any department, agency, special
purpose district, or other instrumentality of a State or local
government.” See 42 U.S.C. § 12131(1). It regulates every state,
every local government, and every state or local agency in the
United States regardless of whether that entity (or one like it)
has ever engaged in irrational disability discrimination. Taken
as a whole, there can be little doubt that “the accommodation
obligation imposed by Title II . . . far exceeds that imposed by
the Constitution” and is not a congruent and proportional
36
response to the findings of irrational discrimination by states
as outlined in Lane. See Reickenbacker, 274 F.3d at 983.
Ordinarily this would have been the end of the inquiry.
Until Lane, the constitutionality of a statutory provision was
considered as a whole. See e.g., Garrett, 531 U.S. at 365-74
(applying § 5 analysis to Title I as a whole); City of Boerne,
521 U.S. at 529-36 (applying § 5 analysis to RFRA as a whole).
However, in Lane, the Supreme Court took a different approach.
While admitting that taken as a whole Title II may “not [be]
appropriately tailored to serve its objectives,” it concluded
that as-applied in some circumstances Title II is appropriate § 5
legislation. See Lane, 124 S. Ct. at 1992-93. Specifically, it
held that “Title II unquestionably is valid § 5 legislation as it
applies to the class of cases implicating the accessibility of
judicial services.” Id. at 1993. It then refused to address the
application of Title II in any other circumstance. See id. The
Supreme Court has thus structured a new test involving an “as-
applied analysis” whereby courts do not evaluate the
constitutionality of the statute as written, but instead posit
“a hypothetical statute . . . that applies only to” the relevant
circumstance. See id. at 1993 n.18 (holding that courts “need
not examine the full breath of the statute at once”); see also
id. at 2005 (Rehnquist J., dissenting) (acknowledging the change
in approach).
37
As this is a brand new approach to considering the
constitutionality of a statute there is a dearth of precedent on
which to rely in considering how to apply this test. However,
Lane itself provides a roadmap for how to appropriately determine
whether Title II, as-applied to the circumstances of this case,
is appropriate § 5 legislation. In Lane, the Court first
referred back to its findings regarding “unequal treatment of
disabled persons in the administration of judicial services.”
Id. at 1993. It then concluded that Title II’s requirement that
states take “reasonable measures to remove architectural and
other barriers to accessibility” is appropriate legislation
because as-applied it is a congruent and proportional response to
the Court’s findings of irrational discrimination by states in
the administration of judicial services. See id. at 1993. The
Court thus identified the specific constitutional problem to be
remedied (as evidenced by its findings) and then evaluated Title
II as it regulates that specific problem. See id. at 1994.
The Supreme Court identified eight general areas where there
is a demonstrated history of irrational discrimination by states
against the disabled: voting; marriage; jury eligibility; state
mental institutions; zoning decisions; public education; the
penal system; and access to the judicial system. See id. at
1989. The only one of these areas possibly applicable to this
case is state mental institutions. The Court found that there is
38
a “documented history” of unconstitutional discrimination by
state agencies in the settings of “unjustified commitment” and
“the abuse and neglect of disabled persons committed to state
mental institutions.” It documented this history by citing two
of its cases: Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845
(1972), and Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452
(1982).
In Jackson v. Indiana, the petitioner, Theon Jackson, had
been committed to a state mental institution for an indefinite
period of time on account of his incompetency to stand trial for
petty burglary. Jackson, 406 U.S. at 717-20. The trial judge
ordered Jackson confined to a state mental institution until it
was determined that he was competent to stand trial. Id. at 719.
Based on the evaluation of Jackson by two physicians, he would
likely never be competent to stand trial and would thus be
confined to a mental institution for the rest of his life. Id.
The Supreme Court held that Indiana violated Jackson’s rights to
equal protection and due process by condemning him to permanent
institutionalization without the benefit of a civil commitment
hearing applying the proper state standards governing forced
institutionalization. Id. at 730-31. In making its ruling, the
Court did not question the ability of states to order
institutionalization or the normal process by which states
determine whether an individual should be committed. See id. at
39
736 (“States have traditionally exercised broad power to commit
persons found to be mentally ill.”). Instead, it concluded that
the method by which Jackson had been committed violated his
constitutional rights.
In Youngberg v. Romeo, Nicolas Romeo, who was confined to a
state mental institution pursuant to proper procedures, sued the
state mental institution to recover damages for injuries caused
by his own violent behavior and attacks from other residents of
the facility. Romeo, 457 U.S. at 311. The Court considered the
question of whether Romeo, as an “involuntarily committed
retarded person,” had a “constitutionally protected liberty
interest in safety, freedom of movement and training within the
institution.” Id. at 314-15. It concluded that
institutionalized persons like Romeo do have these constitutional
rights and that states are obliged to protect them. Id. at 324
However, recognizing the difficulty of operating a state mental
institution and balancing the protection of these rights with the
orderly operation of such a facility, the Court concluded that
the decisions of the professional personnel who operate these
institutions “are entitled to a presumption of correctness.” Id.
While the Court delineated the rights possessed by
institutionalized persons when they are in forced state custody,
it did not reprimand the state mental institution for its
decisions concerning the care of Romeo or other similarly
40
situated persons.
These two cases relate solely to the process by which a
disabled person is committed to a state mental institution and
the treatment of that person in such a facility once
institutionalized. To the extent that Title II regulates the
process by which disabled persons are institutionalized and their
treatment in state mental institutions once they have been
committed it may be a congruent and proportion response to the
irrational discrimination highlighted in Jackson and Romeo.13
Such an analysis must be left to another day because the
defendant commissioners in this case neither run a state mental
institution nor do they make decisions regarding forced
institutionalization. They run Texas’s Home and Community-based
Waiver Services program which provides home and community based
services for disabled individuals. The Plaintiffs seek to
participate in this program, they do not seek to overturn a
decision forcing their institutionalization nor do they seek to
challenge the care they receive in a state mental institution.
Title II’s regulation of Texas’s decisions regarding
participation in this program has nothing to do with either
forced institutionalization or the treatment of disabled
13
Title II, which regulates decisions regarding
participation in state run services and programs, appears to
regulate neither decisions regarding forced institutionalization
or the care for disabled person in state mental institutions.
41
individuals who reside in state mental institutions. Therefore,
even under the broadest understanding of these terms, Title II,
to the extent that it regulates Texas’s decisions regarding
participation in the Medicaid programs at issue in this case,
cannot be considered to be a “congruent and proportional”
response to the findings of irrational disability discrimination
by states and local entities as outlined in Lane.
B
Texas next argues that because Title II does not regulate
“economic activity”it is not a valid regulation of commerce under
the Commerce Clause. See United States v. Morrison, 529 U.S.
598, 613, 120 S. Ct. 1740 (2000) (“[C]ases have upheld Commerce
Clause regulation of intrastate activity only where the activity
is economic in nature.”); United States v. Lopez, 514 U.S. 549,
559-60, 115 S. Ct. 1624 (1995). Plaintiffs and the Government
counter that because state entities, including the defendant
agencies, covered by Title II engage in economic activity they
can be regulated by the federal government, and that the economic
activity of disabled individuals who are unable to access public
services sufficiently impact interstate commerce to justify
Congress’s regulation. Further the Government argues that even
if Title II does not sufficiently regulate economic activity to
be justified under the Commerce Clause, the ADA as a whole does
and Title II is such an integral part of the ADA’s permissible
42
regulation that Title II is itself constitutional. See Hodel v.
Indiana, 452 U.S. 314, 329 n.17, 101 S. Ct. 2376 (1981); see also
Lopez, 514 U.S. at 561; Groome Resources Ltd v. Parish of
Jefferson, 243 F.3d 192, 210 (5th Cir. 2000).
“In reviewing an act of Congress passed under its Commerce
Clause authority, we apply the rational basis test . . . .”
Groome, 234 F.3d at 203. Therefore, “we invalidate a
congressional enactment only upon a plain showing that Congress
has exceeded its constitutional bounds.” Morrison, 529 U.S. at
607.
In United States v. Lopez and United States v. Morrison the
Supreme Court outlined the framework for evaluating whether a
federal law constitutes permissible Commerce Clause
legislation.14 There are three broad categories of activity that
Congress may regulate under its commerce power: 1) channels of
interstate commerce; 2) the instrumentalities of interstate
commerce, or persons or things in interstate commerce; 3) those
activities having a substantial relation to interstate commerce,
i.e. those activities that substantially affect interstate
commerce. Id. at 609.
14
In Lopez, the Supreme Court struck down the Gun-Free
Zones Act of 1990 which criminalized the knowing possession of a
firearm within a school zone. Lopez, 514 U.S. at 551. In
Morrison, it struck down the Violence Against Women Act which
provided civil remedies for victims of gender-motivated violence.
Morrison, 529 U.S. at 601.
43
Title II provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied benefits of the services, programs,
or activities of a public entity, or be subjected to
discrimination by such entity.” 42 U.S.C. § 12132. Like the
statutes in both Lopez and Morrison Title II cannot be justified
under either of the first two types of permissible Commerce
Clause legislation because it solely regulates intrastate
activity. Plaintiffs and the Government instead rely on the
argument that Title II regulates activity that “substantially
affects interstate commerce.”
The Supreme Court has outlined four factors to be taken into
account when deciding whether Congress is regulating an activity
that substantially affects interstate commerce: 1) whether the
activity regulated is “economic [in] nature”; 2) whether the
statute has an “express jurisdictional element” limiting its
reach to activities with a connection to interstate commerce; 3)
whether the statute’s “legislative history contains express
congressional findings regarding the effects upon interstate
commerce”; and 4) whether the link between the regulated activity
and interstate commerce are too attenuated to be considered a
regulation of interstate commerce. Morrison, 529 U.S. at 610-12
(restating the requirements outlined in Lopez); see Groome, 234
F.3d at 203-04 (recognizing the Lopez-Morrison framework).
44
The first factor is whether the regulated activity is
economic in nature. “This query derives from the general Lopez
requirement that the regulated intrastate activities, ‘arise out
of or are connected with a commercial transaction, which viewed
in the aggregate, substantially affects interstate commerce.’”
Groome, 234 F.3d at 205 (quoting Lopez, 514 U.S. at 561)
(emphasis added). In Morrison, the Supreme Court specifically
emphasized the importance of this factor in this framework. See
Morrison, 529 U.S. at 610 (“[A] fair reading of Lopez shows that
the noneconomic, criminal nature of the conduct at issue was
central to our decision in that case.”).
We have interpreted Lopez to define two types of economic
activity: 1) activity that is in any sort of economic enterprise;
and, 2) activity that exists as an essential part of a larger
regulation of economic activity, in which the regulatory scheme
would be undercut unless the intrastate activity were regulated.
See Groome, 234 F.3d at 205 (citing Lopez, 514 U.S. at 561).
Economic activity as defined by Lopez and understood by Groome
requires a “commercial transaction,” see Lopez, 514 U.S. at 561,
or “commercial intercourse,” see Groome, 234 F.3d at 206; see
also United States v. Ho, 311 F.3d 589, 598-99 (5th Cir. 2002)
(emphasizing that Congress may only regulate “commercial
activity”). “It bears reminding that at issue is the power to
regulate interstate commerce. In that sense commerce is ‘the
45
exchange of goods and services’ or ‘trade and other business
activities.’” GDF Realty Investments Ltd v. Norton, 326 F.3d 622,
629 (5th Cir. 2003) (quoting BLACK’S LAW DICTIONARY 263 (7th Ed.
1999)).
Texas argues that Title II does not regulate economic or
commercial activity, rather, by its own terms, it regulates
“participation in . . . services, programs, or activities of a
public entity.” See 42 U.S.C. § 12132. While admitting that
states often engage in commercial activity both as an entity in
the market and as a regulator, Texas argues that its decisions
concerning who is eligible to participate in its programs and
receive its entitlements do not constitute commercial activity as
contemplated by Lopez and Morrison. These decisions do not
involve “commercial transactions,” see Lopez, 514 U.S. at 561,
nor do they regulate “commercial intercourse,” see Groome, 234
F.3d at 205-06 (finding that zoning decisions regulate “the
commercial transaction[s] of purchasing a home and the commercial
rental of housing”).
Plaintiffs and the Government first claim that Title II is a
regulation of an economic enterprise. They argue that public
entities like the defendants engage in the commercial activity of
hiring and paying staff, purchasing or renting facilities, and
borrowing money. Although all of this is true, none of it is
relevant. Texas does not challenge the provisions of the ADA
46
that regulate its commercial activity, namely Title I, which
regulates its hiring practices. See United States v. Mississippi
Dep’t of Public Safety, 321 F.3d 495, 500-01 (5th Cir. 2003)
(finding that employment is commerce, and that Title I is
permissible commerce clause legislation as applied to states).
It only challenges Title II, which regulates its decisions as to
who receives the benefits of its social services. Title II does
not regulate any of the activities highlighted by the Plaintiffs.
Further, if this argument was accepted there would be no
limit on Congress’s ability to regulate state entities. All
state entities, including state legislatures and courts, hire and
pay staff and engage in other commercial and economic activity
such as purchasing goods and services. One would not conclude
that Congress can therefore regulate all the activities of state
legislatures and courts. Although, under the commerce clause,
Congress may regulate state entities as they engage in commercial
transactions, Congress does not have carte blanche authority to
regulate state entities in all their activities))commercial or
not))simply because these entities sometimes engage in commercial
transactions. See discussion infra.
Plaintiffs next counter that Title II regulates economic
activity because discrimination against disabled persons
substantially affects those persons’ commercial and economic
47
activities and the national economy. Plaintiffs argue that when
disabled individuals are denied access to public services it
affects their ability to engage in economic activity which
affects interstate commerce. This argument misreads Lopez. The
relevant question is not whether the regulated activity affects
commerce, it is whether the regulated activity is commerce. See
Lopez, 514 U.S. at 560-61; GDF Realty, 326 F.3d at 630 (noting
that the key question is “whether the nature of the regulated
activity is economic”). The “substantially affecting” language
is only relevant once it is determined that economic activity is
being regulated and the court must determine whether that
intrastate economic activity substantially affects interstate
commerce. See Lopez, 514 U.S. at 560 (“Where economic activity
substantially affects interstate commerce, legislation regulating
that activity will be sustained.”) (emphasis added); see also
Morrison, 529 U.S. at 613 (“[O]ur cases have upheld Commerce
Clause regulation of intrastate activity only where that activity
is economic in nature.”) (emphasis added). The substantially
affecting test is inapplicable when determining whether the
federal law regulates economic activity.
Moreover, in Morrison, the Supreme Court explicitly rejected
this kind of reasoning.15 First noting that “Congress found that
15
We also explicitly rejected this reasoning in United
States v. Ho. See Ho, 311 F.3d at 599 (“[A]ny imaginable
48
gender-motivated violence affects interstate commerce,” it
rejected the use of “reasoning that . . . [employs] the but-for
causal chain from the initial occurrence of violent crime . . .
to every attenuated effect upon interstate commerce.” Morrison,
529 U.S. at 615. It noted that employment of this “reasoning
would allow Congress to regulate any crime as long as the
nationwide, aggregated impact of that crime has substantial
effects on employment, production, transit, or consumption.” Id.
Further it could “be applied equally as well to family law and
other areas of traditional state regulation since the aggregate
effect of marriage, divorce, and childrearing on the national
economy is undoubtably significant.” Id. at 615-16. This is
exactly what Congress seeks to do with Title II, namely regulate
the traditional activities of states by linking their non-
economic activities to some tangential effect they have on the
national economy. This is not permitted under the Commerce
Clause.
Finally, Plaintiffs point to this Court’s decision in Groome
Resources v. Parish of Jefferson as evidence that Congress can
regulate discrimination by state entities against the disabled.
activity of mankind can affect the alertness, energy, and mood of
human beings, which in turn can affect their productivity in the
workplace, which when aggregated together could reduce national
economic productivity. Such reasoning would eliminate any
judicially enforceable limit on the Commerce Clause, thereby
turning that clause into what it most certainly is not, a general
police power.”).
49
In Groome, we considered a commerce clause challenge to the
application of § 3604(f)(3)(B) of the Fair Housing Amendments Act
(“FHAA”) to zoning decisions. This provision prohibits the
refusal to make reasonable accommodations in rules or policies
that prevent disabled persons from full and equal use of
dwellings. See 42 U.S.C. § 3604(f)(3)(B). Plaintiffs, a local
zoning board, challenged the constitutionality of the provision
as applied to their zoning decisions. We held that FHAA’s
regulation of zoning decisions is a regulation of commerce
because zoning decisions regulate the economic activity of
purchasing a home or renting property. See Groome, 234 F.3d at
205-06. That is not the case here. The FHAA, as applied in
Groome, applied to state commercial regulation. The zoning
decisions in Groome were fundamentally commercial in nature
because they regulated obviously commercial activity, namely “the
commercial transaction of purchasing a home and the commercial
renting of housing.” See id. at 205. Thus, Groome stands solely
for the proposition that Congress may regulate states’ regulation
of commercial activity under the Commerce Clause. But see New
York v. United States, 505 U.S. 144, 166, 112 S. Ct. 2408 (1992)
(“The allocation of power contained in the Commerce Clause . . .
does not authorize Congress to regulate state governments’
regulation of interstate commerce.”). It does not stand for the
proposition that it can regulate states’ non-economic decisions
50
as those decisions are not by their nature commercial regulation.
The Government claims that Title II fits under the second
category of economic regulation, non-economic regulation that is
integral part of a permissible regulation of commerce. It argues
that Title II is an integral part of the ADA’s permissible
regulation of economic activity. See Hodel, 452 U.S. at 329 n.17
(“[A] complex regulatory program . . . can survive a Commerce
Clause challenge without a showing that every single facet of the
program is independently and directly related to a valid
congressional goal. It is enough that the challenged provisions
are an integral part of the regulatory program and that the
regulatory scheme when considered as a whole satisfies this
test.”); see also Lopez, 514 U.S. at 561; GDF Realty, 326 F.3d at
633.
The Government argues that the ADA is a comprehensive
economic regulation of the activities of the disabled in the
national economy. It further argues that in providing Title II
services states often compete with private entities in areas such
as housing, education, transportation, communication and health
services such that exempting the states from the ADA’s
prohibitions against disability discrimination would unduly
burden private sector entities in relation to state agencies.
This, it argues, would undermine the willingness of private
entities to voluntarily engage in behavior benefitting disabled
51
persons. Finally, it argues that allowing disability
discrimination in the providing of public services perpetuates
stereotypical attitudes about the disabled that will spill over
into the private sector and undermine the effectiveness of both
Title I and III. These arguments fail.
Title I’s regulation of employment discrimination is
permissible Commerce Clause legislation, see Mississippi Dep’t of
Public Safety, 321 F.3d at 500-01 (finding that employment is
commerce, and that Title I is permissible commerce clause
legislation as applied to states). Title III does not apply to
states, see Bloom v. Bexar County, Texas, 130 F.3d 722, 726-27
(5th Cir. 1997), and Congress specifically limited the
application of Title III’s regulation of privately owned places
of public accommodation to those involved in commerce, see 42
U.S.C. § 12181; cf. Spector v. Norwegian Cruise Line Ltd., 356
F.3d 641, 644 (5th Cir. 2004). The ADA, considered as a whole,
is reasonably considered permissible Commerce Clause legislation.
However, Title II is not an integral or necessary part of the
ADA’s economic regulation. See Lopez, 514 U.S. at 561; GDF
Realty, 326 F.3d at 631 (noting that Congressional regulation is
permissible only if “failure to regulate the . . . activity could
‘undercut’ the entire scheme”).
Title II regulates the provision of public services and more
specifically states’ decisions regarding who receives the
52
benefits of their public services. State governments do not
compete with private entities in the provision of these services.
For example, states do not compete with the private sector in the
distribution of the free health care provided by the defendants.
Although low-cost health care providers and charities provide
similar services to similar people, in no sense are states
competing with these entities in the health care market.16 States
are simply providing a government created entitlement. Therefore
states’ decisions in this realm cannot possibly competitively
disadvantage private sector entities as they are not competing
with states in any commercial market. Regardless, private
sector entities are bound by the requirements of the ADA whether
they are competitively disadvantaged or not. Even if states are
not regulated by the ADA, all private entities are subject to its
restrictions. In fact, private entities are subject to broader
restrictions than states because Title III applies exclusively to
them. See Bloom, 130 F.3d at 726-27 (finding that Title III only
applies to private entities). Further, when states do directly
compete with private entities in a market states are engaging in
commercial activity that can be regulated under the Commerce
Clause. See, e.g., Mississippi Dep’t of Public Safety, 321 F.3d
at 500-01 (finding that Congress can regulate states as they act
16
Nor would, for example, local police be in competition
with a private security service, or a local fire department with
a squad of volunteer firemen.
53
in the “national labor market”); cf. Reno v. Condon, 528 U.S.
141, 151, 120 S. Ct. 166 (2000) (finding that Congress can
regulate states as “the owners of databases.”).
Additionally, although the Government is correct that
allowing discrimination against disabled individuals in the
providing of public services helps entrench negative stereotypes
against the disabled that may spill over into the private sector,
Congress has passed laws forbidding such discrimination by
private entities, including Title I and III of the ADA.17
Further, although changing those negative stereotypes is a noble
goal it is not in of itself economic or commercial regulation.
Title II is not an integral part of the ADA’s economic regulation
of disability discrimination as Congress can achieve its
permissible goals solely through the use of commercial
regulation.
This is in contrast to the federal regulations in Wickard
v. Filburn, 317 U.S. 111, 63 S. Ct. 82 (1942). Wickard
considered the application of restrictions on production of wheat
to a farmer growing wheat for personal use. The Supreme Court
noted in Lopez that although Wickard was not engaging in economic
17
States, like Texas, have also passed such laws. See
e.g. TEX. LAB. CODE. § 21.051 (forbidding employment
discrimination based on disability); TEX. PROP. CODE § 301.025
(forbidding discrimination based on disability in sale or rental
of property); TEX HEALTH & SAFETY CODE §§ 592.015, 592.016
(forbidding discrimination against mentally retarded individuals
in both employment and housing).
54
activity, the purpose of Congress’s legislation was economic in
nature, namely to regulate the price of wheat. See Lopez, 514
U.S. at 560. Restricting Wickard’s non-economic production and
personal consumption of wheat was necessary to achieve Congress’s
economic goal of propping up the price of wheat. See Wickard,
317 U.S. at 128 (finding that widespread “home-consumed wheat
would have a substantial influence on price and market
conditions”). That is not the case here, Congress’s permissible
economic purposes, namely regulating discrimination in interstate
commerce, can be achieved solely through prohibitions on
discrimination by entities (including states) engaged in
commercial activity.
“[B]y its terms [Title II] has nothing to do with
‘commerce’ or any sort of economic enterprise,” nor is it “an
essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the
intrastate activity were regulated.” See Lopez, 514 U.S. at 561.
The second factor is whether the regulated activity has an
express jurisdictional element limiting its reach to activities
with a connection to interstate commerce. The parties agree that
there is no such jurisdictional element in Title II. Plaintiffs
and the Government argue that this is not particularly telling
because Title II so clearly regulates interstate commerce. As
discussed above, this is not correct. Congress made no explicit
55
restriction on Title II’s applicability to services and benefits
that are economic in nature and substantially affect interstate
commerce.18
The third factor is whether the legislative history contains
express congressional findings regarding the regulated activities
effects upon interstate commerce. Both Plaintiffs and the
Government cite to ample congressional findings indicating that
the purpose of the ADA is to regulate interstate commerce. They
also cite to findings that disability discrimination leads to
“unnecessary expenses resulting from dependency and non-
productivity.” See 42 U.S.C. § 12101(a)(9). However, as Texas
points out, they cite to no Congressional findings that connect
disability discrimination in the providing of social services to
interstate commerce. In fact, the findings they cite relate to
employment discrimination. See, e.g., S. Rep. No. 101-116, at 17
(reprinted in 1990 U.S.C.C.A.N. 267, 325-26) (“Certainly, the
elimination of employment discrimination and the main streaming
of persons with disabilities will result in more persons with
disabilities working . . . .”) (emphasis added).
Considering most of the ADA, as a general proposition,
regulates commerce, congressional findings that the ADA’s general
purpose is to regulate commerce are not terribly helpful, and
18
In contrast, Congress did limit the applicability of
Title III’s regulation of public accommodations to those involved
in commerce. See 42 U.S.C. § 12181.
56
findings related to employment discrimination are wholly
irrelevant. Although it would be too much to say that Congress
made no relevant findings that can be interpreted as connecting
Title II to interstate commerce, it is safe to say that
Plaintiffs and the Government have highlighted no “legislative
history contain[ing] express congressional findings regarding
[Title II’s] effects upon interstate commerce.” See Morrison,
529 U.S. at 612 (emphasis added). The Supreme Court emphasized
the need for express findings because the purpose of reviewing
these findings is to “enable us to evaluate the legislative
judgment that the activity in question substantially affects
interstate commerce, even though no such substantial effect is
visible to the naked eye.” Morrison, 529 U.S. at 612.
Plaintiffs and the Government highlight no findings that negate
the obvious, that Title II does not regulate economic activity.
The fourth and final factor is whether the link between the
regulated activity and interstate commerce is too attenuated to
be considered a regulation of interstate commerce. This factor
relates to whether the regulated economic activity substantially
affects interstate commerce and is only applicable if Congress is
regulating economic activity. The Supreme Court did not apply
this factor when striking down the statutes in Lopez and Morrison
and it is also inapplicable in this case.
Title II of the ADA is not permissible Commerce Clause
57
legislation to the extent that it regulates states’ decisions
regarding who will participate in or receive the benefits of
state entitlement programs.
C
I do not believe that Congress acted within its powers under
the Commerce Clause in enacting Title II of the ADA. I further
do not believe that it acted within its authority under § 5 of
the Fourteenth Amendment as applied in this case. Consequently, I
do not believe that Title II is valid federal law to the extent
that it regulates Texas’s decisions regarding participation in
the programs at issue in this case, and I do not believe that
Plaintiffs have alleged a continuing violation of valid federal
law.19 Thus, I would reverse the district court’s ruling as to
Title II and hold that Texas has Eleventh Amendment immunity from
Plaintiffs’ Title II claim.
III
Texas asserts that § 504 of the Rehabilitation Act is
invalid Spending Clause legislation.20 It argues that because
19
Because I find that Title II was enacted beyond
Congress’s legislative authority I do not consider Texas’s
contention that it violates the Tenth Amendment.
20
Whether Texas may have already waived its sovereign
immunity to suit under § 504, or whether Congress may have
already abrogated it under its § 5 authority are both questions
presently being considered by this Court en banc. See Pace v.
Bogalusa City Sch. Bd., 325 F.3d 609 (5th Cir. 2003), reh’g
granted en banc, 339 F.3d 348 (5th Cir. 2003); Johnson v.
Louisiana Dep’t of Educ., 330 F.3d 362 (5th Cir. 2003), reh’g
58
conditions on federal funding must be “related” to the funding
received by states Congress cannot broadly place conditions on
all federal funding accepted by states; it must instead directly
tie its conditions to the specific funding received by the state.
Texas thus argues that because it “receive[s] no § 504 funding”21
its receipt of federal Medicaid funding cannot constitutionally
be conditioned by § 504. I disagree.
Under the Spending Clause, “Congress may attach conditions
on the receipt of federal funds . . .[and may] condition[]
receipt of federal moneys upon compliance by the recipient with
federal statutory and administrative directives.” South Dakota
v. Dole, 483 U.S. 203, 206, 107 S. Ct. 2793 (1987). Congress may
condition the receipt of federal monies if the conditions: 1) are
in “the general welfare”; 2) were “unambiguously”communicated
such that “the States [are] . . . cognizant of the consequences
of” receiving the federal funding; 3) are related “to the federal
interest in particular national projects or programs”; and, 4)
granted en banc, 343 F.3d 732 (5th Cir. 2003); Miller v. Texas
Tech, 330 F.3d 691 (5th Cir 2003), reh’g granted en banc, 342
F.3d 563 (5th Cir. 2003). I do not express an opinion on these
questions. Assuming that Texas has either waived its immunity or
Congress has abrogated it, this challenge to the
constitutionality of § 504 is beyond the scope of our
jurisdiction in this appeal. See discussion supra. However, as
these questions are as of yet unresolved by this Court and as I
believe Texas’s constitutional challenge fails, I will address
the merits of its argument.
21
More accurately, Texas receives no funding under the
Rehabilitation Act.
59
are not otherwise barred by the Constitution. Id. at 207-08.
Section 504 of the Rehabilitation Act provides that: “No
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .” 29 U.S.C. §
794(a). It specifically applies to state entities that receive
federal funding. See 29 U.S.C. § 794(b)(1).
Texas concedes receiving federal financial assistance under
the Medicaid Act to operate the state programs at issue in this
case. It also implicitly concedes that it was aware of § 504 and
its restrictions at all times it was receiving federal monies.
Therefore, Texas does not argue that it was unaware that its
receipt of federal money was governed by § 504, rather it argues
that because the restrictions were not specifically tied to its
Medicaid funding they were not part of its “contract” with the
federal government. See Barnes v. Gorman, 536 U.S. 181, 186, 122
S. Ct. 2097 (2002) (comparing Congress’s conditions on the
receipt of federal money to a “contract” between the states and
the federal government).
Texas incorrectly concludes that Congress may not generally
condition the receipt of federal monies. Title VI of the Civil
Rights Act of 1964, using language almost identical to that found
60
in § 504, requires that no person on the basis of “race, color,
or national origin [shall] be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d; see Barnes, 536 U.S. at 186 (noting the Title
VI and § 504 are “coextensive”). The Supreme Court has already
held that Title VI is valid Spending Clause legislation. See
Guardians Ass’n v. Civil Service Comm’n of City of New York, 463
U.S. 582, 598-99, 103 S. Ct. 3221 (1983) (“I note first that
Title VI is spending-power legislation.”). The Court reasoned
that the conditions in Title VI were like any other conditions
Congress could have made on the receipt of federal money. See
id. at 599 (“Title VI imposes no obligations but simply extends
an option that potential recipients are free to accept or
reject.”) (internal quotations omitted). It did not appear to
see a distinction between conditions specific to a particular
allocation of federal money and those generally applicable to all
federal monies available to states. See id. In fact, it
concluded that Congress’s purposes in enacting Title VI were
related to the spending it provided. See id. (“Title VI rests on
the principle that taxpayers’ money, which is collected without
discrimination, shall be spent without discrimination.”).
It is no different with § 504. In § 504, Congress connects
its funding of state-run programs with its prohibition on
61
discrimination regarding participation in those programs.
Congress does not seek to generally regulate the activities of
the recipient state entities, or to regulate their activities
unrelated to the use of federal funds. Instead, Congress seeks
to control how the federal monies it provides are spent.
Specifically, it seeks to ensure that the federal monies are not
used to fund state programs that discriminate against the
disabled. Congress’s purpose and its conditions on the receipt
of federal money are directly related. The fact that Congress
sought to efficiently apply these conditions to all federal
funding in one legislative act rather than in multiple ones has
no effect on the constitutionality of its restrictions.
Section 504 of the Rehabilitation Act is valid Spending
Clause legislation. Consequently, the Plaintiffs seek to
vindicate valid federal rights and have alleged an ongoing
violation of valid federal law under Ex parte Young. I would
therefore affirm the district court’s ruling denying Texas’s
claim of Eleventh Amendment immunity.
IV
Texas argues that Plaintiffs cannot bring a Young suit under
the Medicaid Act because the act does not provide an individual
right of action. See Gonzaga v. Dole, 536 U.S. 273, 282, 122 S.
Ct. 2268 (2002) (“[A] plaintiff must assert the violation of a
federal right, not merely a violation of federal law.”); Blessing
62
v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353 (1997). And
further contends that because the statute provides no cause of
action the Plaintiffs have not properly alleged a Young suit.
Texas does not challenge the constitutionality of the
Medicaid Act or its status as valid federal law. Instead Texas
questions whether Congress has provided a means of seeking
redress for violations of the act through private causes of
action in federal courts. The question of whether Congress
created such a cause of action goes beyond the “inquiry into
whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” See
Verizon, 535 U.S. at 645. Texas does not challenge Congress’s
authority to create such a cause of action, but only questions
whether Congress exercised that authority with respect to the
Medicaid Act. Texas’s contention therefore does not address the
balance between the supremacy of federal law and states’ right to
immunity from suit. Rather, it assumes the validity of the
federal law underlying the Plaintiff’s Young suit and questions
whether federal courts, as a function of federal statutory law,
can provide relief. This is a merits question that is beyond the
scope of this appeal. See id. at 646.
V
To sustain a Young suit a plaintiff must seek to “vindicate
the supreme authority of federal law.” Therefore, the
63
constitutionality of the federal law underlying a plaintiff’s
Young suit is properly considered as part of an interlocutory
review of a district court’s refusal to grant a state Eleventh
Amendment immunity. Title II, as a whole, is impermissible
Commerce Clause legislation. It is also impermissible § 5
legislation as-applied to this case. Therefore, I do not believe
that the Plaintiffs Young suit under Title II can be sustained and
Texas is entitled to Eleventh Amendment immunity. I, however,
believe that the Rehabilitation Act is valid spending clause
legislation and that the Plaintiffs Young suit under this statue is
proper. Finally, I believe that Texas’s contention that the
Medicaid Act does not provide an individual cause of action is
beyond the scope of this appeal. I thus concur in part, and
dissent in part.
64