Adam Barbour v. Washington Metropolitan Area Transit Authority, United States of America, Intervenor , 374 F.3d 1161 ( 2004 )

Opinion for the Court filed by Circuit Judge GARLAND.

Dissenting opinion filed by Circuit Judge SENTELLE.

GARLAND, Circuit Judge:

The Washington Metropolitan Area Transit Authority (WMATA) contends that sovereign immunity protects it from being sued in federal court under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, for discriminating on the basis of disability. It insists that it did not waive that immunity by accepting federal financial assistance, and further maintains that Congress lacks power under the Spending Clause to condition the receipt of federal funds on such a waiver. We disagree and hold that WMA-TA has waived its immunity to Rehabilitation Act suits by taking federal transportation funds.

I

WMATA fired Adam Barbour from his position as a probationary electrician on April 1, 1998. Barbour charges that WMATA fired him because he suffers from a mental disability, bipolar disorder. WMATA denies the charge, maintaining that it terminated Barbour for insubordinate, threatening, and anti-social behavior.

On February 24, 2000, Barbour sued WMATA in the United States District Court for the District of Columbia under federal and local causes of action, alleging that the Authority discriminated against him because of his disability. Only one cause of action survived WMATA’s motions for dismissal and summary judgment: Barbour’s claim that his discharge violated § 504 of the Rehabilitation Act. In permitting that claim to go forward, the district court rejected WMATA’s contention that the Eleventh Amendment renders WMATA immune from a Rehabilitation Act suit for money damages in federal court.

WMATA now appeals the district court’s denial of immunity, a kind of interlocutory appeal over which this court has jurisdiction. See KiSKA Constr. Corp.-U.S.A. v. WMATA, 167 F.3d 608, 610-11 (D.C.Cir.1999). The United States has intervened on Barbour’s side, maintaining that WMA-TA waived its Eleventh Amendment immunity by accepting federal funds, and that the waiver is constitutionally valid. These issues regarding WMATA’s immunity are the only ones that we decide on this appeal. Because the claim of immunity presents a legal question, our review is de novo. See United States v. Microsoft, 253 F.3d 34, 50-51 (D.C.Cir.2001).

II

WMATA, a mass transit system for the District of Columbia and surrounding suburban areas, was created by an interstate compact among Maryland, Virginia, and the District of Columbia, and enjoys the Eleventh Amendment immunity of the two signatory states. Morris v. WMATA, 781 F.2d 218, 219-20 (D.C.Cir.1986); see Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 49-50 & n. 20, 115 S.Ct. 394, 405 & n. 20, 130 L.Ed.2d 245 (1994). The Eleventh Amendment to the Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. “Although by its terms the Amendment applies only to suits against a State by citizens of another State,” the Supreme Court has “extended the Amendment’s applicability to suits by citizens against their own states.” Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 362, 121 S.Ct. 955, 961, 148 L.Ed.2d 866 (2001).

There are two important exceptions to Eleventh Amendment immunity. First, a state may waive its immunity and consent to suit. Second, Congress may exercise its enforcement power under § 5 of the Fourteenth Amendment to abrogate a state’s immunity without its consent. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999) (citing Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883), and Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Whether WMATA waived its immunity is the question at issue here.

The “ 'test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.’ ” College Savings, 527 U.S. at 676, 119 S.Ct. at 2226 (quoting Atascadero, 473 U.S. at 241, 105 S.Ct. at 3146-47). The courts will find a waiver if a state makes a “clear declaration” of its intent to submit to federal court jurisdiction. Id. To elicit a clear declaration, Congress “may, in the exercise of its spending power, condition its grants of funds to the States upon their taking certain actions that Congress could not require them to take, and ... acceptance of the funds entails an agreement to the actions.” Id. at 686, 119 S.Ct. at 2231. But Congress must exercise its power explicitly: a congressional waiver provision is constitutional only if it manifests “a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity.” Atascadero, 473 U.S. at 247, 105 S.Ct. at 3149-50.

WMATA denies that it consented to waive its Eleventh Amendment immunity from suit under the Rehabilitation Act. First, it contends that Congress did not clearly condition acceptance of federal transportation funds on such a waiver. Second, WMATA maintains that, even if Congress did condition financial assistance on a waiver, WMATA did not knowingly accept the money on that basis. We consider these arguments in turn.

A

Section 504 of the Rehabilitation Act of 1973 provides:

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). The Act provides remedies for violations of § 504 by “any recipient of Federal assistance.” Id. § 794a(2). In Atascadero State Hospital v. Scanlon, the Supreme Court found that the Rehabilitation Act’s “general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment,” 473 U.S. at 246, 105 S.Ct. at 3149, and “likewise falls short of manifesting a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity,” id. at 247, 105 S.Ct. at 3149-50. Accordingly, the Court concluded that the Eleventh Amendment remained effective in proscribing Rehabilitation Act suits against states and state agencies. Id.

In 1986, in response to Atascadero, Congress passed the Civil Rights Remedies Equalization Act (CRREA), which provides in relevant part:

A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

42 U.S.C. § 2000d-7(a)(1); .see Lane v. Pena, 518 U.S. 187, 198, 116 S.Ct. 2092, 2099-100, 135 L.Ed.2d 486 (1996). Every circuit that has considered the question — that is, every circuit other than our own and the Federal Circuit — has held that the language of the CRREA unambiguously conditions a state agency’s acceptance of federal funds on its waiver of Eleventh Amendment immunity.¹ Albeit in dictum, the Supreme Court has said so as well. See Lane, 518 U.S. at 200, 116 S.Ct. at 2100 (declaring that in the CRREA, “Congress responded to our decision in Atascadero by crafting an unanv-biguous waiver of the States’ Eleventh Amendment immunity”) (emphasis added).

Notwithstanding the views of the circuits and of the Supreme Court, WMA-TA maintains that the CRREA does not make clear that receipt of funds is conditioned on a waiver of immunity. We disagree. The CRREA identifies “recipients of Federal financial assistance” as the only entities whose immunity is vulnerable. Moreover, the CRREA waiver is directly tied to Rehabilitation Act § 504, which likewise applies only to discrimination “under any program or activity receiving Federal financial assistance,” including state instrumentalities. 29 U.S.C. § 794(a); see id. § 794(b). The language of the two statutes together is thus undeniably clear about the simple choice offered to states: if they accept federal funds, they will lose their immunity to Rehabilitation Act suits for discriminatory acts; if they decline the money, they remain free of the Act’s proscriptions. WMATA could have avoided the Act — and preserved its immunity — by declining to take federal transportation funds. It chose not to. By stepping into the statute’s reach, it voluntarily exposed itself to the suits the statute authorizes.

WMATA insists that the CRREA is ambiguous because its opening clause — “A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court” — parallels language that Congress has frequently used in attempting to abrogate state immunity. The Supreme Court has indeed construed similar statutory language as the language of abrogation. See, e.g., Garrett, 531 U.S. at 360, 121 S.Ct. at 960 (Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117, 12202); College Savings, 527 U.S. at 682, 119 S.Ct. at 2229 (Lanham Act, 15 U.S.C. § 1122(a)); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 635, 119 S.Ct. 2199, 2204-05, 144 L.Ed.2d 575 (1999) (Patent Remedy Clarification Act, 35 U.S.C. § 296(a)).² WMATA argues that, while “abrogation and waiver are related concepts,” it is “implausible that the same words would mean both.” Appellant’s Br. at 5.

Whatever the validity of WMATA’s claim that the language of the CRREA’s opening clause cannot do double duty, that claim simply ignores the statute’s closing words, which, like those of the Rehabilitation Act, single out recipients of “Federal financial assistance” as the only entities within the statute’s purview. By contrast, none of the abrogation statutes WMATA cites contains anything more than the naked “shall not be immune” language. This is a distinction of considerable difference.

College Savings Bank v. Florida Prepaid makes clear why this distinction matters. In that case, the question was whether Congress could condition a state’s sale of a tuition prepayment plan on relinquishment of its immunity to Lanham Act suits for false advertising. The Court held that such a condition amounted to a “forced,” rather than a voluntary waiver because the state could not avoid liability except by abstaining from interstate commerce. 527 U.S. at 683, 119 S.Ct. at 2229-30. At the same time, however, College Savings declared that “conditions attached to a State’s receipt of federal funds are simply not analogous to ... conditions attached to a State’s decision to engage in otherwise lawful commercial activity.” Id. at 678 n. 2, 119 S.Ct. at 2227 n. 2 As the Court explained, “Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts.” Id. at 686-87, 119 S.Ct. at 2231. Thus, what Congress threatens if the state refuses to agree to its spending condition is merely “the denial of a gift or gratuity,” which is “fundamentally different” from the “automatic[ ]” coercion that takes place when “what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity.” Id.³

With this distinction, the Supreme Court reaffirmed its prior holdings “that Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions.” Id. at 686, 119 S.Ct. at 2231 (citing South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)). Because that is precisely what Congress did in the CRREA, we reject WMATA’s contention that its acceptance of funds was insufficient to constitute a valid waiver of its Eleventh Amendment immunity.

B

WMATA’s second argument is that, even if the CRREA did unambiguously condition receipt of funds on a waiver of immunity, the Authority nonetheless did not knowingly consent to such a waiver by taking federal funds in 1998, the year in which it terminated Barbour. In that year, WMATA contends, “it reasonably believed that Congress had already abrogated its immunity” from suits for disability discrimination by virtue of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112(a). Reply Br. at 7.⁴ Although the Supreme Court later held in Board of Trustees v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), that Title I exceeded Congress’ authority to abrogate sovereign immunity, WMATA argues that it could not have predicted that result in 1998. At that time, WMATA maintains, it mistakenly believed that waiving immunity to Rehabilitation Act suits by accepting federal funds would cost it little that the ADA had not already taken. This misapprehension regarding the scope of its existing immunity, WMATA concludes, renders its waiver “unknowing” and hence invalid.

A similar argument prevailed in Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2d Cir.2001), a case involving alleged disability discrimination by a New York instrumentality in 1995. No other circuit has accepted this argument,⁵ and those that have considered the issue have decided to the contrary. See Doe v. Nebraska, 345 F.3d 593, 601-02 (8th Cir.2003); Garrett v. University of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292-93 (11th Cir.2003); M.A. v. State-Operated Sch. Dist., 344 F.3d 335, 349-51 (3d Cir.2003). We likewise reject it, and with it WMATA’s claim that it did not knowingly waive its immunity when it took federal transportation funds in 1998. We do so for three reasons.

First, College Savings and Atascadero establish a single criterion for determining the validity of a waiver: Congress must clearly condition acceptance of federal funds on the state’s waiver of its sovereign immunity. See College Savings, 527 U.S. at 686, 119 S.Ct. at 2231; Atascadero, 473 U.S. at 247, 105 S.Ct. at 3150. Although it is true that an effective waiver must be “knowing,” accepting federal funds on a clear condition constitutes an objective manifestation of knowledge. As the Court said in College Savings, when the condition is explicit, “acceptance of the funds entails an agreement to the actions.” 527 U.S. at 686, 119 S.Ct. at 2231. See also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539-40, 67 L.Ed.2d 694 (1981) (“By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation”).

Although Garcia conceded that the CRREA “constitutes a clear expression of Congress’ intent to condition acceptance of funds on a state’s waiver of its Eleventh Amendment immunity,” 280 F.3d at 113, it added a second criterion for validity: that “the state, in accepting the funds, believed it was actually relinquishing its right to sovereign immunity.” Id. at 115 n. 5 (emphasis added). But the Supreme Court has never considered a state’s state of mind when ascertaining whether a waiver has been effected. Rather, it has directed courts to inquire only as to whether the state accepted federal funds in the face of a clear condition. Because that is just what WMATA did, its protestation of lack of knowledge is to no avail.

Second, even Garcia recognized that an argument like WMATA’s, that a state instrumentality had miscalculated what its immunity was worth, would lose force as the Supreme Court’s Eleventh Amendment jurisprudence evolved. Although Garcia saw no reason for New York to suspect that the ADA’s abrogation was invalid in 1995, it acknowledged that a state’s acceptance of funds at a later date — after the Supreme Court issued two decisions that formed the predicate for Garrett — “might properly reveal a knowing relinquishment of sovereign immunity.” 280 F.3d at 113 n. 4. When WMATA accepted federal funds in 1998, both of those predicate decisions had already been issued. See City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997) (holding that legislation promulgated under § 5 of the Fourteenth Amendment that reaches beyond the scope of the Amendment’s guarantees must exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72, 116 S.Ct. 1114, 1131-32, 134 L.Ed.2d 252 (1996) (holding that Congress lacks authority to abrogate state immunity under Article I of the Constitution). Indeed, WMATA itself argued in another case in 1997 — a year before Barbour was terminated — that the Court’s decision in Seminole Tribe had rendered invalid Congress’ attempted abrogation of state immunity in the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. See Motion to Dismiss ADEA Claims, Jones v. WMATA, No. 89-552 (D.D.C. Jan. 14, 1997). Hence, even if we were to adopt Garcia’s analysis, it would be insufficient to sustain WMATA’s claim of immunity in this case.

Finally, even if WMATA’s state of mind were a relevant consideration, the underlying implication of its argument — that it was only WMATA’s miscalculation about whether its immunity had already been abrogated by the ADA that led it to accept federal funds in 1998 — would fail on the facts. The CRREA, after all, was passed in 1986 — four years before the ADA, and hence four years before WMATA could claim that it thought it lost its protection against disability discrimination lawsuits. Nonetheless, WMATA took federal trans•portation funds during each of those years. Reply Br. at 9. Likewise, although Garrett was decided in 2001, WMATA has continued to take federal funds ever since — notwithstanding its knowledge that the ADA’s abrogation was ineffective after that date. Indeed, at oral argument, counsel for WMATA conceded that “it is hard to imagine that the Authority would have foregone” the funds in 1998, whatever the impact on its sovereign immunity. Oral Arg. Tr. at 12. It is thus clear that WMATA’s decision was not based on a miscalculation about the scope of its sovereign immunity, but rather on a reckoning of the value of the financial assistance offered by the federal government.⁶

Ill

As a last argument, WMATA contends that Congress lacks power under the Spending Clause, U.S. Const. Art. I, § 8, cl. 1, to condition WMATA’s federal transportation funds on a waiver of immunity from suit under the Rehabilitation Act. Specifically, WMATA argues that the CRREA’s waiver condition runs afoul of the Supreme Court’s decision in South Dakota v. Dole, because it is “unrelated to the federal interest” in transportation funds. 483 U.S. 203, 206-07, 107 S.Ct. 2793, 2795-96, 97 L.Ed.2d 171 (1987).⁷ The Court did not elaborate on the meaning of that statement, and it has not done so since, other than to cite Dole for the proposition that conditions on the receipt of federal funds must “bear some relationship” to the purpose of the spending. New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 2423-24, 120 L.Ed.2d 120 (1992). Nor has the Court ever overturned Spending Clause legislation on relatedness grounds. Whatever substantive limitation Dole’s relatedness requirement poses for congressional power, it is clear that the CRREA has not crossed that line.

In the CRREA, the legislature made clear that it did not want any federal funds to be used to facilitate disability discrimination, and that exposing recipient entities to the threat of federal damage actions was an effective deterrent. Congress’s spending condition guarantees that federal money is used for the provision of transportation, and nothing else. Every circuit that has considered the issue has concluded that the connection between the congressional goal (that federal transportation funds be used exclusively for that purpose), and the congressional means (the spending condition), is close enough to be sustained under the spending power. See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir.2003) (“As to the third [Dofe] requirement, § 2000d-7 is manifestly related to Congress’s interest in deterring federally supported agencies from engaging in disability discrimination.”); A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 243 (3d Cir.2003) (same); Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir.2002) (same).

We do not break any new ground in reaching the same conclusion. As the United States points out, the Rehabilitation Act’s nondiscrimination requirement is patterned alter Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), which prohibit, respectively, race and sex discrimination in programs or activities that receive federal funds. See NCAA v. Smith, 525 U.S. 459, 466 n. 3, 119 S.Ct. 924, 928 n. 3, 142 L.Ed.2d 929 (1999). In Lau v. Nichols, the Supreme Court upheld Title VI as valid Spending Clause legislation: “The Federal Government has power to fix the terms on which its money allotments to the States shall be disbursed. Whatever may be the limits of that power, they have not been reached here.” 414 U.S. 563, 569, 94 S.Ct. 786, 789-90, 39 L.Ed.2d 1 (1974). Similarly, with respect to Title IX, the Court held in Grove City College v. Bell that “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” 465 U.S. 555, 575, 104 S.Ct. 1211, 1222, 79 L.Ed.2d 516 (1984) (citing Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1539-40, where the Court noted that, “pursuant to the spending power, ... Congress may fix the terms on which it shall disburse federal money” if it does so “unambiguously”).

WMATA’s only response is to note, correctly, that Lau and Grove City predate Dole. But Dole itself cited Lau as a case in which Congress had lawfully used the spending power “ ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’ ” Dole, 483 U.S. at 206, 107 S.Ct. at 2795-96 (citing Lau, and quoting Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758, 2772-73, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.)). The Supreme Court has never suggested that it has any second thoughts about its treatment of the spending power in either Lau or Grove City.⁸ To the contrary, in New York v. United States, the Court again held up Lau as an example of a Spending Clause case in which it had “found no constitutional flaw in a federal statute.” 505 U.S. at 167, 112 S.Ct. at 2423-24. Nor did the specific condition imposed by regulation in Lau — that school systems provide language instruction for non-English-speaking students — bear a more “obvious relation,” Dissenting Op. at 6, to the general federal (educational) appropriation to which it was tied than does the condition here. Nothing in Lau suggested that the federal funds were, or had to be, intended for classroom instruction rather than, for example, the acquisition of equipment or the construction of athletic facilities. See 42 U.S.C. § 2000d (barring discrimination in “any program or activity receiving Federal financial assistance”).

In its most recent Spending Clause case, the Court confirmed the constitutionality of 18 U.S.C. § 666(a)(2), which makes bribery of officials of state entities that receive in excess of $10,000 in federal funds a federal crime, and which does not require a connection between a given bribe and a particular federal grant. See Sabri v. United States, — U.S. -, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).⁹ “Congress has the authority under the Spending Clause to appropriate federal monies to promote the general welfare, Art. I § 8, cl. 1,” the Court said, “and it has corresponding authority under the Necessary and Proper Clause, Art. I § 8, cl. 18, to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft.” Id. at 1946. That statement echoes the congressional purpose underlying Title VI, as the Court understood it in Law. “ ‘Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.’ ” 414 U.S. at 569, 94 S.Ct. at 789 (quoting 110 Cong. Rec. 6543 (March 30, 1964) (Sen. Humphrey, quoting President Kennedy’s message to Congress, 'June 19, 1963)). We see no reason why it should matter, for purposes of the Spending Clause, that in the case before us Congress’ concern runs to discrimination on the basis of disability rather than race. Indeed, Congress reasonably can insist that decisions regarding the expenditure of federal funds not be based on irrational discrimination. Such discrimination “fritterfs] away” federal funds, 124 S.Ct. at 1946, just like the graft discussed in Sabri, and insisting on a waiver of immunity to help combat it is just as closely related to the underlying purpose of providing such funds.

Finally, we note an analytic difference that may be at the root of our disagreement with our dissenting colleague. In his view, “conditional funding grants are no less regulatory than any form of federal regulation of the states.” Dissenting Op. at 2. On this point, however, College Savings teaches otherwise, and it is worth repeating that opinion’s key passage here:

As we have held in such cases as South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take- These cases seem to us funda-

mentally different from the present one [about regulation under the Lanham Act].... Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts.

527 U.S. at 686-87, 119 S.Ct. at 2231-32.

IV

We hold that WMATA waived its immunity from suit under the Rehabilitation Act by accepting federal transportation funds, and that Congress had authority under the Spending Clause to condition the receipt of federal funds on such a waiver. The judgment of the district court is therefore

Affirmed.

1 . See Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir.2003); Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98 (2d Cir.2001); A.W. v. Jersey City Pub. Schs., 341 F.3d 234 (3d Cir.2003); Litman v. George Mason Univ., 186 F.3d 544 (4th Cir.1999); Pace v. Bogalusa City Sch. Bd., 325 F.3d 609 (5th Cir.2003), vacated & reh'g en banc granted, 339 F.3d 348 (5th Cir.2003); Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626 (6th Cir.2001); Stanley v. Litscher, 213 F.3d 340 (7th Cir.2000); Jim C. v. United States, 235 F.3d 1079 (8th Cir.2000) (en banc); Lovell v. Chandler, 303 F.3d 1039 (9th Cir.2002); Robinson v. Kansas, 295 F.3d 1183 (10th Cir.2002); Gatrett v. University of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288 (11th Cir.2003).

2 . In the cited cases, the Court ruled that abrogation was beyond Congress' authority.

3 . Although College Savings noted that "the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion,' "527 U.S. at 687, 119 S.Ct. at 2231 (quoting South Dakota v. Dole, 483 U.S. 203, 211, 107 S.Ct. 2793, 2798, 97 L.Ed.2d 171 (1987)), WMATA does not suggest that point has been passed here.

4 . Title I bars a covered entity from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to ... terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

5 .A panel of the Fifth Circuit agreed with Garcia, but the full court vacated that decision pending reconsideration en banc. See Pace, 339 F.3d 348 (granting petition for rehearing en banc).

6 . In addition to contending that it believed the ADA had left it with nothing to lose by taking federal funds, WMATA argues that it thought the "abrogation language” of the CRREA similarly left it with liability under the Rehabilitation Act whatever it did. This argument is meritless, and no court has accepted it. As we have noted above, both the CRREA and the Rehabilitation Act apply only to discrimination by recipients of "Federal financial assistance.” 42 U.S.C. § 2000d-7(a)(1); 29 U.S.C. § 794(a). Hence, whether WMATA read the CRREA’s text as the language of "abrogation” or of "waiver,” it had to know that it could wholly avoid liability under the Rehabilitation Act by declining federal funds.

7 . Dole listed a number of other limits on Congress' Spending Clause authority. WMA-TA does not contend that any of those apply here, except insofar as Dole’s requirement that funding conditions be "unambiguous,” 483 U.S. at 207, 107 S.Ct. at 2796, is relevant to WMATA’s arguments about waiver, a point we addressed in Part II.A.

8 . The Court did subsequently reject Lau’s interpretation of Title VI as extending beyond intentional discrimination. See Alexander v. Sandoval, 532 U.S. 275, 285, 121 S.Ct. 1511, 1518-19, 149 L.Ed.2d 517 (2001). And the Civil Rights Restoration Act of 1987, 20 U.S.C. § 1687, superceded Grove City's interpretation of the scope of Title IX. See NCAA, 525 U.S. at 465-66 & n. 4, 119 S.Ct. at 927-28 & n. 4; see also 29 U.S.C. § 794(b).

9 . The dissent's contention that Sabri is distinguishable because ''[r]ampant bribery of WMATA officials ... would make it more difficult for federal funds to do the job of providing mass transit,” while disability discrimination "would not,” Dissenting Op. at 1174, overlooks the Court's recognition that § 666 does not require "any connection between a bribe or kickback and some federal money.” 124 S.Ct. at 1945.