Arbogast v. Kansas Department of Labor

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 19, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
KATHLEEN ARBOGAST,
Plaintiff - Appellee,
v. No. 14-3091
STATE OF KANSAS, DEPARTMENT
OF LABOR,
Defendant - Appellant,
and
LANA GORDON, individually and as
Secretary of Labor for the State of Kansas,
Defendant.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 5:13-CV-04007-JAR-KMH)
_________________________________
Glenn Howard Griffeth, Chief Counsel, Kansas Department of Labor, Topeka, Kansas
(M. J. Willoughby, Assistant Attorney General, Topeka, Kansas, with him on the briefs),
for Defendant-Appellant.
Alan V. Johnson (Danielle N. Davey with him on the brief), Sloan, Eisenbarth,
Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Plaintiff-Appellee.
_________________________________
Before KELLY, HOLMES, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
Defendant-appellant Kansas Department of Labor (KDOL) brings this
interlocutory appeal, arguing the district court should have dismissed plaintiff-
appellee Kathleen Arbogast’s suit because (1) KDOL lacks the capacity to sue and to
be sued under Kansas law and (2) even if KDOL is a proper defendant, it is immune
from suit by operation of the Eleventh Amendment to the U.S. Constitution. We hold
that we lack appellate jurisdiction to consider KDOL’s capacity argument, but we
exercise our jurisdiction under the collateral order doctrine and affirm the district
court’s determination that KDOL is not entitled to Eleventh Amendment immunity
from Ms. Arbogast’s claims.
I. BACKGROUND
Ms. Arbogast was employed in the Workers Compensation Division of KDOL,
a governmental subdivision of the State of Kansas. Ms. Arbogast suffers from asthma
and, in April 2008, complained that perfumes and other strong fragrances in the
workplace were impairing her ability to work. In September 2010, Ms. Arbogast was
moved to a workspace in the basement of her office building in an attempt to
alleviate the problem. But Ms. Arbogast continued to suffer asthma attacks when
coworkers wearing fragrances would come speak with her, prompting Ms. Arbogast
to make additional complaints to her supervisor. On August 1, 2011, Karin Brownlee,
then-Secretary of Labor, terminated Ms. Arbogast’s employment at KDOL.
On January 22, 2013, Ms. Arbogast filed suit, asserting claims of
discrimination and retaliation in violation of the Rehabilitation Act of 1973, 29
2
U.S.C. § 701 et seq.1 Ms. Arbogast named as defendants the “State of Kansas,
Department of Labor” and Ms. Brownlee in her individual capacity. She sought
monetary damages in excess of $100,000.
KDOL moved to dismiss Ms. Arbogast’s Rehabilitation Act claims pursuant to
Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). Relevant to this
appeal, KDOL argued the district court did not have jurisdiction to adjudicate the
claim because (1) KDOL lacks the capacity to sue or to be sued under Kansas law
and (2) Kansas has not waived its Eleventh Amendment immunity from suit. Ms.
Arbogast filed a motion seeking limited discovery on the jurisdictional issue, which
the district court granted.
After the parties completed limited discovery, the district court denied
KDOL’s motion to dismiss. Specifically, the district court found KDOL had waived
its Eleventh Amendment immunity by accepting federal funds for its Unemployment
Insurance Division. Although Ms. Arbogast worked in the Workers Compensation
Division, the district court concluded that KDOL’s acceptance of federal funds for
the Unemployment Insurance Division was sufficient to waive Eleventh Amendment
immunity for the entirety of KDOL, including the Workers Compensation Division.
The district court also rejected KDOL’s argument that it did not have the capacity to
be sued, finding it was merely a reiteration of KDOL’s immunity argument. KDOL
now brings this interlocutory appeal.
1
Ms. Arbogast also asserted claims under the Family Medical Leave Act, but
those claims are not before us in this appeal.
3
II. DISCUSSION
KDOL argues (1) the district court erred in not dismissing Ms. Arbogast’s
Rehabilitation Act claims because KDOL lacks the capacity to sue and to be sued
under Kansas law and (2) even if KDOL is a proper defendant, it has not waived its
Eleventh Amendment immunity from suit for purposes of Ms. Arbogast’s
Rehabilitation Act claims. We address each claim in turn.
A. We Do Not Have Appellate Jurisdiction to Consider KDOL’s Claim that It
Lacked the Capacity to be Sued
KDOL first argues the district court erred in refusing to dismiss Ms.
Arbogast’s suit because KDOL lacks the capacity to sue or to be sued under Kansas
law and is therefore not a proper defendant. See Fed. R. Civ. P. 17(b) (indicating that
a party’s capacity to sue or be sued in federal court is determined by state law).
Specifically, KDOL argues that, as merely a state agency, Kansas law does not
endow it with the capacity to sue or to be sued. It further argued in its briefing before
this court that we have jurisdiction to hear an immediate appeal of this issue under
the collateral order doctrine. But counsel for KDOL conceded at oral argument that
the collateral order doctrine may not permit interlocutory review of KDOL’s lack of
capacity argument. For the reasons discussed below, this concession was appropriate.
Normally, federal appellate courts only have jurisdiction to hear appeals from
“final decisions of the district courts.” 28 U.S.C. § 1291. But the U.S. Supreme Court
has also recognized a “small class” of nonfinal orders, which, though not usually
immediately appealable, are nonetheless amenable to interlocutory appeal under the
4
collateral order doctrine.2 See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949). Under this “narrow” exception to the final order rule, Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994), the Supreme Court has
recognized two ways in which an interlocutory order may be immediately
reviewable: (1) the order must independently meet all of the required elements of a
collateral order or (2) the order must fall within this court’s limited pendent
jurisdiction. See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42, 50–51 (1995)
(citing Cohen, 337 U.S. at 546); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,
1147 (10th Cir. 2011). We address each possible basis of appellate jurisdiction in
turn.
First, KDOL contends both its Eleventh Amendment immunity and lack of
capacity claims fall within the collateral order doctrine. It is well established that
orders denying state entities Eleventh Amendment immunity are immediately
reviewable under the collateral order doctrine. Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) (“We hold that States and state
entities that claim to be ‘arms of the State’ may take advantage of the collateral order
doctrine to appeal a district court order denying a claim of Eleventh Amendment
immunity.”); accord Timpanogos Tribe v. Conway, 286 F.3d 1195, 1199–1200 (10th
Cir. 2002). But we must determine whether KDOL’s lack of capacity claim is
2
Other methods to immediately appeal nonfinal orders include a petition for
interlocutory appeal under Federal Rule of Appellate Procedure 5 and certification by
the district court pursuant to 28 U.S.C. § 1292(b) or Federal Rule of Civil Procedure
54(b). In this case, KDOL has invoked only the collateral order doctrine as the basis
for our jurisdiction.
5
similarly amenable to immediate review. To invoke our jurisdiction under the
collateral order doctrine, an appellant “must establish that the district court’s order
(1) conclusively determined the disputed question, (2) resolved an important issue
completely separate from the merits of the case, and (3) is effectively unreviewable
on appeal from a final judgment.” Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co.,
415 F.3d 1171, 1178 (10th Cir. 2005) (internal quotation marks omitted). “Unless all
three requirements are met, jurisdiction is not available under the collateral order
doctrine.” Utah State Dep’t of Health ex rel. Utah v. Kennecott Corp., 14 F.3d 1489,
1492 (10th Cir. 1994). In this case, KDOL has failed to establish the first requirement
because the district court did not conclusively determine KDOL’s capacity to sue or
to be sued under Kansas law.
When considering whether a district court has conclusively determined the
disputed question, this court has emphasized the importance of precisely identifying
that question. See United States v. Deters, 143 F.3d 577, 580 (10th Cir. 1998). “In
order to determine what the disputed question is, we must examine the grounds for
the appeal.” Id. (brackets and internal quotation marks omitted). “Only by identifying
the precise issue being appealed can a court decide whether that issue has been
conclusively determined . . . .” Id. at 580. The relevant issue being appealed in this
case is whether KDOL has the capacity to be sued under Kansas law.
The district court’s analysis of KDOL’s lack of capacity argument consisted of
three sentences:
6
Fed. R. Civ. P. 17(b)(3) provides that parties must have “capacity” to be
sued, as determined by the law of the state where the court is located.
KDOL essentially reiterates its sovereign immunity defenses by arguing
that governmental entities do not have the capacity to be sued in the
absence of express authorization. As explained above, KDOL’s
acceptance of federal funds acts as a waiver of sovereign immunity and
renders any arguments against capacity ineffectual.
Although the district court disposed of KDOL’s lack of capacity argument, it held
only that the argument was “ineffectual” because it reflected a mere repackaging of
KDOL’s sovereign immunity arguments. But the court’s analysis sheds little light on
the precise issue KDOL raised below and on appeal: whether KDOL has the statutory
capacity to be sued under Kansas law. Thus, KDOL has failed to establish that its
capacity claim is an independently appealable collateral order.
Because we do have collateral order doctrine jurisdiction to review KDOL’s
immunity claim, we next consider whether we may exercise our pendent appellate
jurisdiction to also consider its capacity claim. In Swint, the Supreme Court expressly
limited pendent appellate jurisdiction in the collateral order context. See Swint, 514
U.S. at 42. And this court has “interpreted Swint to mean that the exercise of our
pendent appellate jurisdiction is only appropriate when the otherwise nonappealable
decision is inextricably intertwined with the appealable decision, or where review of
the nonappealable decision is necessary to ensure meaningful review of the
appealable one.” Crowe & Dunlevy, 640 F.3d at 1148 (internal quotation marks
omitted). We have further emphasized,
[A] pendent appellate claim can be regarded as inextricably intertwined
with a properly reviewable claim on collateral appeal only if the
pendent claim is coterminous with, or subsumed in, the claim before the
7
court on interlocutory appeal—that is, when the appellate resolution of
the collateral appeal necessarily resolves the pendent claim as well.
Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995).
The interlocutory order properly before us concerns whether KDOL is entitled
to immunity from Ms. Arbogast’s claims under the Eleventh Amendment. The issue
of whether KDOL has the capacity to be sued under Kansas law is not “coterminous
with, or subsumed in,” the immunity issue, id., because whether KDOL has the
statutory capacity to be sued under Kansas law is irrelevant to our determination of
whether Eleventh Amendment immunity bars Ms. Arbogast’s claims. It is similarly
unnecessary for us to resolve the capacity issue “to ensure meaningful review” of the
immunity issue. See Crowe & Dunlevy, 640 F.3d at 1148. Thus, because KDOL’s
capacity claim is not independently appealable under the collateral order doctrine and
because resolution of the capacity claim is not necessary to our resolution of the
immunity claim, we lack appellate jurisdiction to consider it. Accordingly, we
dismiss the appeal on the issue of whether KDOL has the capacity to be sued under
Kansas law.
8
B. KDOL Waived Its Eleventh Amendment Immunity by Accepting Federal Funds
for Its Unemployment Insurance Division
KDOL’s remaining claim is that it is immune from suit under the Eleventh
Amendment to the U.S. Constitution. Specifically, KDOL argues it has not waived its
Eleventh Amendment immunity3 for purposes of Ms. Arbogast’s Rehabilitation Act
claim because its acceptance of federal funds for its Unemployment Insurance
Division cannot constitute a waiver of immunity for the entirety of KDOL. We
review a district court’s determination of Eleventh Amendment immunity de novo.
Robinson v. Kansas, 295 F.3d 1183, 1188 (10th Cir. 2002), abrogated on other
grounds by Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 n.4 (10th Cir.
2012).
The Eleventh Amendment 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. The Supreme
Court has interpreted the Eleventh Amendment to bar suits in federal court against a
nonconsenting state brought by the state’s own citizen. Edelman v. Jordan, 415 U.S.
3KDOL’s briefing on this issue seems to conflate the concepts of a state’s
“sovereign immunity” from suit in state court with a state’s Eleventh Amendment
immunity in federal court. But Eleventh Amendment immunity is a subset of a state’s
inherent sovereign immunity. 13 Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3524 (3d ed. 2008). State sovereign immunity protects states from
suit and damages in their own courts; the Eleventh Amendment extends such
sovereign immunity to the states for actions initiated against them by their citizens in
federal court. See Purvis v. Williams, 73 P.3d 740, 751 (Kan. 2003) (“The
Rehabilitation Act claim was brought in federal court, where only Eleventh
Amendment immunity is at issue, not sovereign or inherent immunity.”).
9
651, 662–63 (1974). But such immunity is not absolute. Congress can abrogate
states’ immunity when exercising its power under section 5 of the Fourteenth
Amendment to the U.S. Constitution. See U.S. Const. Amend. XIV, sec. 5 (“The
Congress shall have power to enforce, by appropriate legislation, the provisions of
this article.”); College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 670 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996).
Relevant to this appeal, a state may also waive its Eleventh Amendment immunity.
Seminole Tribe, 517 U.S. at 65 (referring to the “unremarkable . . . proposition that
the States may waive their sovereign immunity”). States can voluntarily waive their
immunity by choosing to invoke federal jurisdiction. Lapides v. Bd. of Regents of
Univ. Sys. of Ga., 535 U.S. 613, 620 (2002). “Waiver can also occur when the state
‘unequivocally’ expresses its intent to submit itself to [federal] jurisdiction.”
Robinson, 295 F.3d at 1189 (quoting Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99 (1984)). A state can express such unequivocal intent by statute,
constitutional provision, or through its “actions, specifically, its participation in a
particular federal program.” Id.To determine whether KDOL unequivocally expressed its intent to waive
Eleventh Amendment immunity through acceptance of federal funds as described in
the Rehabilitation Act, we first look to the act’s plain language. Congress enacted the
Rehabilitation Act of 1973 to combat discrimination targeted toward individuals with
physical and mental disabilities. See 29 U.S.C. § 794. The act provides:
10
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 or under any program or activity conducted by any Executive
agency or by the United States Postal Service.
Id.In Atascadero State Hospital v. Scanlon, 473 U.S. 234, 247 (1985), the
Supreme Court held that the act fell “far 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.” In response to the Atascadero decision, Congress
enacted the Rehabilitation Act Amendments of 1986, in which it sought to provide a
sufficiently clear statement that acceptance of federal funds by the states constituted
a waiver of immunity. See Robinson, 295 F.3d at 1189. As codified, the amendment
provides:
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a
violation of section 504 of the Rehabilitation Act of 1973 . . . or the
provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1).
The Supreme Court has declared § 2000d-7 to be precisely “the sort of
unequivocal waiver that our precedents demand.” Lane v. Pena, 518 U.S. 187, 198
(1996). Accordingly, every circuit court to consider the issue, including the Tenth
Circuit, has concluded “that by accepting federal financial assistance as specified in
42 U.S.C. § 2000d-7, states and state entities waive sovereign immunity from suit.”
11
Robinson, 295 F.3d at 1190 (collecting cases); Brockman v. Wyo. Dep’t of Family
Servs., 342 F.3d 1159, 1167 (10th Cir. 2003) (“[A]ny State reading 42 U.S.C.
§ 2000d-7(a)(1) would clearly understand that, by accepting funding, it was
consenting to resolve disputes regarding alleged violations of the Act’s anti-
discrimination provisions in federal court.” (brackets and ellipses omitted)).
Therefore, our precedent squarely holds that a state’s “affirmative choice to apply
for, and accept, [federal] funds thus serves as an express waiver of immunity.”
Brockman, 342 F.3d at 1168.
It is undisputed that KDOL accepted federal funds for its Unemployment
Insurance Division. As such, the only remaining question here is whether such
acceptance waived Eleventh Amendment immunity for the Rehabilitation Act claims
of Ms. Arbogast, who worked for the Workers Compensation Division. To answer
this question, we again start with the language of the Rehabilitation Act, which
prohibits discrimination by “any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). The act further defines “program or activity” as “all
of the operations of . . . a department, agency, special purpose district, or other
instrumentality of a State or of a local government[,] . . . any part of which is
extended Federal financial assistance.” Id. § 794(b)(1)(A) (emphasis added). “In this
sense, the scope of the Eleventh Amendment immunity waiver directly correlates to
the state department or agency receiving federal financial assistance.” Koslow v.
Pennsylvania, 302 F.3d 161, 171 (3d Cir. 2002).
12
Counsel for KDOL conceded at oral argument that the plain language of
§ 794(b)(1)(A) indicates KDOL’s acceptance of federal funds for any part of its
operations effectuates a waiver of Eleventh Amendment immunity for the entire
department. Nevertheless, KDOL advances several overlapping theories why it has
not waived Eleventh Amendment immunity for the Workers Compensation Division.4
First, KDOL argues it did not knowingly and voluntarily waive its Eleventh
Amendment immunity through acceptance of funds for its Unemployment Insurance
Division. Second, KDOL argues the contract documents governing the grant of
federal funds to the Unemployment Insurance Division do not demonstrate knowing
and voluntary waiver of immunity. Third, KDOL argues its Workers Compensation
Division qualifies as a separate “program or activity” under the Rehabilitation Act,
and therefore any waiver of immunity based on funds received by the Unemployment
Insurance Division would not encompass claims arising out of the Workers
Compensation Division. Finally, KDOL argues that extending waiver of immunity to
the Workers Compensation Division—which accepts no federal funds—violates the
Spending Clause of the U.S. Constitution. We address each argument in turn.
4
KDOL also asserted that any waiver of Eleventh Amendment immunity
would be limited to a waiver of immunity from suit and KDOL would retain its
immunity from awards of money damages. Even if this argument were meritorious,
KDOL did not raise it until its reply brief. The argument is therefore waived. See
Martin K. Eby Constr. Co. v. OneBeacon Ins. Co., 777 F.3d 1132, 1142 (10th Cir.
2015); accord M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768 n.7 (10th
Cir. 2009) (“[T]he general rule in this circuit is that a party waives issues and
arguments raised for the first time in a reply brief.”).
13
1. KDOL’s Affirmative Acceptance of Federal Funds Effectuated a Valid Waiver
KDOL argues its mere receipt of federal funds is insufficient to demonstrate it
has knowingly and voluntarily waived its Eleventh Amendment immunity. This
argument is squarely foreclosed by our precedent holding that receipt of funds under
the Rehabilitation Act is a valid waiver of immunity. See Robinson, 295 F.3d at 1190.
Accordingly, we do not address it further.
2. KDOL’s Waiver Was Accomplished by Operation of Statute, Not Through
Contractual Agreement
KDOL next argues its acceptance of federal funds for its Unemployment
Insurance Division cannot support a finding of waiver because the contract
documents governing the federal grant received by the division did not evince a clear
intent to waive the state’s Eleventh Amendment immunity. KDOL relies on this
court’s decision in Nanomantube v. Kickapoo Tribe in Kansas, 631 F.3d 1150 (10th
Cir. 2011). There, a former employee brought a Title VII employment discrimination
complaint against the tribe and the tribal casino in which the employee had worked.
Id. at 1151. The employee argued the tribe had “waived its sovereign immunity
though a single sentence contained in the casino’s employee handbook,” in which the
tribe promised to comply with the provisions of Title VII. Id. at 1152. The employee
argued this sentence constituted consent to suit in federal court for Title VII suits. Id.We disagreed and held the tribe’s agreement to comply with Title VII, without more,
did not constitute an unconditional waiver of sovereign immunity. Id. at 1153.
14
KDOL argues that, like in Nanomantube, the contracts governing the grants it
received from the federal government are insufficient to constitute an explicit waiver
of immunity. The first problem with KDOL’s argument is that tribal sovereignty,
unlike state sovereignty, is not governed by the Eleventh Amendment. See id. at
1151–52 (explaining the source of tribal immunity). The second problem with
KDOL’s argument is that the waiver of its immunity here is not dependent on any
contractual agreements. Rather, KDOL’s immunity has been waived through
Congress’s unequivocal statement in § 2000d-7 that receipt of federal funds
constitutes consent to waive Eleventh Amendment immunity, followed by KDOL’s
affirmative choice to accept the conditioned funds. See Robinson, 295 F.3d at 1190(noting that no waiver through contract is necessary if waiver has been accomplished
by statute). Accordingly, there was no need for KDOL to waive its immunity by
contract because waiver had already been accomplished through the acceptance of
federal funds.
3. The Workers Compensation Division Is Not a Separate “Program or Activity”
Under the Rehabilitation Act
KDOL also argues the Workers Compensation Division should be considered
its own “program or activity” under the Rehabilitation Act. And as a result, it argues
any waiver of immunity based on the Unemployment Insurance Division’s
acceptance of federal funds cannot be extended to waive immunity from
Rehabilitation Act claims arising out of Ms. Arbogast’s employment in the Workers
Compensation Division. Generally, courts considering the scope of a state entity’s
15
waiver under the Rehabilitation Act acknowledge that the definition of “program or
activity” was “not intended to sweep in the whole state or local government”
whenever one subdivision discriminates. Schroeder v. City of Chicago, 927 F.2d 957,
962 (7th Cir. 1991). Rather, courts interpret the phrase “program or activity” to “only
cover[] all the activities of the department or the agency receiving federal funds.”
Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir. 2002). When courts consider
whether a particular subunit of state government is an independent department under
the Rehabilitation Act, they look to the state’s characterization of the subunit under
state law. Sharer v. Oregon, 581 F.3d 1176, 1178 (9th Cir. 2009); Haybarger v.
Lawrence Cnty. Adult Probation & Parole, 551 F.3d 193, 201 (3d Cir. 2008)
(“Although the Rehabilitation Act is a federal statute, we look to state law to
ascertain the character of a state entity for purposes of assessing Eleventh
Amendment immunity.”). Courts further consider the degree of financial and
administrative independence of the subunit. Sharer, 581 F.3d at 1180; Haybarger,
551 F.3d at 202.
On appeal, KDOL has not addressed the Workers Compensation Division’s
administrative structure within KDOL. Rather, it argues the Workers Compensation
Division should be considered a “department” unto itself because (1) it “is entirely
funded through assessments on employers within the State,” (2) there is no
commingling of funds between the division and KDOL as a larger entity, and (3) the
division pays KDOL for any services it receives from KDOL. Accordingly, KDOL
argues the Workers Compensation Division was entirely shielded from federal funds
16
and KDOL did not waive its Eleventh Amendment immunity relating to claims under
the Rehabilitation Act arising from that division.
But a division that accepts no federal funds can nonetheless fall within the
scope of an Eleventh Amendment waiver so long as that division is part of the same
department under state law. The Third Circuit has described the waiver under
§ 2000d-7 as “structural,” meaning “[o]nce the department or agency is identified,
. . . the statute encompasses all of its operations, regardless of whether a particular
operation is federally funded.” Haybarger, 551 F.3d at 200. In Haybarger, a former
employee of Pennsylvania’s Lawrence County Adult Probation and Parole
Department (LCAPPD) brought suit under the Rehabilitation Act, claiming she was
discharged due to health problems. Id. at 196. LCAPPD was a subunit of the Fifty-
Third Judicial District. Id. at 196 n.1. Although LCAPPD received no federal funds,
the Domestic Relations Section of the Fifty-Third Judicial District received federal
social security funds. Id. at 197. After the district court dismissed the claims on the
basis of Eleventh Amendment immunity, the employee appealed. The Third Circuit
concluded the Domestic Relations Section was a subunit of the Fifty-Third Judicial
District and that a subunit’s acceptance of federal funds worked a waiver on the
entire Fifty-Third Judicial District. Id. at 200. The Third Circuit reasoned that
“[b]ecause the [Domestic Relations Section] is not independent, the funds it receives
are imputed to the Fifty-Third Judicial District as a whole,” and immunity was
therefore waived. Id. at 202. See also Thomlison v. City of Omaha, 63 F.3d 786, 789
(8th Cir. 1995) (holding that where the city’s Fire Division received no federal funds,
17
but was part of the Public Safety Department and other Public Safety Department
divisions received federal funds, the entire Public Safety Department—including the
Fire Division—had waived immunity for violations of the Rehabilitation Act). But
see Sharer, 581 F.3d at 1179–80 (holding that where agency was part of judicial
branch as defined by Oregon Constitution, but not part of the Judicial Department
under Oregon statute, receipt of federal funds by Judicial Department did not waive
Eleventh Amendment immunity for Rehabilitation Act claims against agency).
These cases stand for the proposition that acceptance of federal funds for one
division within a larger department may effectuate a waiver of Eleventh Amendment
immunity for the entirety of the larger department, including divisions that accept no
federal funds. The critical question is the degree to which the division accepting
federal funds can be considered independent from the larger department. In this case,
the Unemployment Insurance Division and Workers Compensation Division both
have strong administrative ties to KDOL, which is “administered under the direction
and supervision of the secretary of labor.” Kan. Stat. Ann. § 75-5701(a). The
Workers Compensation Division is “established within and as a part of the
department of labor.” Id. § 75-5708(a). The Workers Compensation division director
is appointed by and serves at the pleasure of the secretary of labor. Id. The secretary
of labor is empowered to fix the director’s salary, appoint administrative law judges,
and approve the selection of assistant directors. Id. § 75-5708(a)–(c). The secretary of
labor is also empowered to “establish policies governing the transaction of all
business of the department and the administration of each of the divisions within the
18
department.” Id. § 75-5723. Thus, as directed by the secretary of labor, KDOL exerts
substantial administrative control over the Workers Compensation Division.
Under Kansas law, KDOL actively administers both the Unemployment
Insurance Division and the Workers Compensation Division. Thus, the Workers
Compensation Division’s separate funding does not make it so independent of the
Department of Labor that it should be considered its own “program or activity” under
the Rehabilitation Act.
Moreover, the contract governing the grant of funds to the Unemployment
Insurance Division was entered into by the Kansas Secretary of Labor on behalf of
KDOL. Kansas law specifically authorizes the secretary to enter into such contracts.
Kan. Stat. Ann. § 75-5733. There is no similar authorization for division directors.
Thus, KDOL accepted federal funds and passed those funds through to its
Unemployment Insurance Division. Under the plain language of the Rehabilitation
Act, KDOL’s acceptance of federal funds waived Eleventh Amendment immunity for
“all of [its] operations,” including those of its Workers Compensation Division. See
29 U.S.C. § 794(b)(1)(A).
4. Extending Waiver of Eleventh Amendment Immunity to the Workers
Compensation Division Does Not Violate the Spending Clause of the U.S.
Constitution
Finally, KDOL argues that interpreting the Rehabilitation Act and § 2000d-7
to effectuate a waiver of Eleventh Amendment immunity for KDOL’s Workers
Compensation Division—which received no federal funds—would exceed
Congress’s authority under the Spending Clause of the U.S. Constitution.
19
Specifically, KDOL contends the connection between its receipt of federal
unemployment insurance funds is too attenuated from the Workers Compensation
Division, thereby violating the Supreme Court’s test for conditions on grants of
federal funds announced in South Dakota v. Dole, 483 U.S. 203 (1987).
In Dole, the Supreme Court discussed the limitations on Congress’s power
under the Spending Clause. First, any exercise of the spending power must be for the
“general welfare.” Id. at 207 (internal quotation marks omitted). “In considering
whether a particular expenditure is intended to serve general public purposes, courts
should defer substantially to the judgment of Congress.” Id. Second, Congress may
condition the states’ receipt of federal funds, but it must do so “unambiguously,
enabling the States to exercise their choice knowingly, cognizant of the consequences
of their participation.” Id. (brackets, ellipses, and internal quotation marks omitted).
Third, the conditions must be related “to the federal interest in particular national
projects or programs.” Id. And fourth, other constitutional principles may
independently bar the condition of federal funds. Id. at 208.
KDOL first argues the creation of an individual right of action under the
Rehabilitation Act lacks a sufficient nexus with the general welfare to satisfy the first
Dole requirement. But KDOL’s argument misapprehends the Dole test. The first Dole
factor requires Congress to exercise its spending power “in pursuit of the general
welfare.” Id. at 207 (internal quotation marks omitted). We have recognized that
combating discrimination is a valid objective furthering the general welfare. See, e.g.,
Hous. Auth. of Fort Collins v. United States, 980 F.2d 624, 629 (10th Cir. 1992)
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(“The obligations placed on [state housing agency] by Section 420 of the [federal
agreement] such as maintenance of the properties as low-income housing, limitation
on rents that can be charged, and the prohibition against discrimination in housing,
all are obviously valid objectives furthering the general welfare.”). But once
Congress chooses a proper objective, the means Congress employs to achieve that
objective need only be “reasonably calculated” to do so. Dole, 483 U.S. at 208.
Allowing those who suffer discrimination at the hands of state entities to bring a
private cause of action is “reasonably calculated” to achieve Congress’s goal of
combating discrimination. Thus, the first Dole factor is satisfied.
KDOL also argues under the second Dole factor that it did not have sufficient
notice of the possibility that it would be waiving immunity for the entire Department
of Labor by accepting funds for the Unemployment Insurance Division. But the plain
language of the Rehabilitation Act and § 2000d-7 indicates that a state waives
immunity for “all of the operations” of a department “any part of which” receives
federal funds. 29 U.S.C. § 794(b)(1)(A). Therefore, KDOL had sufficient notice of
the scope of its waiver.
KDOL further argues that the condition placed upon the receipt of federal
funds—waiver of immunity—is unrelated to the federal interest justifying
expenditure of those funds, at least to the extent waiver is extended to a division that
accepted no federal funds. Although the Dole Court declined to “define the outer
bounds of the ‘germaneness’ or ‘relatedness’ limitation on the imposition of
conditions under the spending power,” Dole, 483 U.S. at 208 n.3, the Third Circuit
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rejected an argument largely identical to KDOL’s. It held there need only be a
“discernible relationship imposed by a Rehabilitation Act condition on a department
or agency and a federal interest in the program it funds.” Koslow, 302 F.3d at 175(internal quotation marks omitted). The Koslow court reasoned, “Through the
Rehabilitation Act, Congress has expressed a clear interest in eliminating disability-
based discrimination in state departments or agencies. That interest, which is
undeniably significant and clearly reflected in the legislative history, flows with
every dollar spent by a department or agency receiving federal funds.” Id. at 175–76
(citing Alexander v. Choate, 469 U.S. 287, 295–97 (1985)). We agree with the Third
Circuit that Congress’s intent to eliminate disability-based discrimination is linked to
its distribution of federal funds, and that it expressly conditioned the receipt of
federal funds by any subunit of a state department or agency on compliance with the
Rehabilitation Act. The third Dole factor is satisfied.5
KDOL has not argued that any other constitutional provisions are implicated in
this case. Accordingly, we do not apply the fourth Dole factor.
To conclude, KDOL’s acceptance of federal funds for its Unemployment
Insurance Division effectuated a waiver of Eleventh Amendment immunity for all of
the operations of KDOL, including those of its Workers Compensation Division. The
5
KDOL argues the Supreme Court addressed the third Dole factor in National
Federation of Independent Business v. Sebelius, __ U.S. __, 132 S. Ct. 2566 (2012)
(NFIB), and required a higher degree of relatedness between funding conditions and
the goals of Congress. But the NFIB Court’s discussion of Dole was focused on the
point at which conditions on the receipt of federal funds switch from permissible
inducement to coercion. Id. at 2604–05. The Court did not address the “relatedness”
element. Thus, KDOL’s reliance on NFIB is misplaced.
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text of the Rehabilitation Act and § 2000d-7 unambiguously extend a state entity’s
waiver of Eleventh Amendment immunity to “all of the operations” of the department
that accepts federal funds. Because the Workers Compensation Division is part of
KDOL’s operations, KDOL’s waiver extends to Ms. Arbogast’s Rehabilitation Act
claims.
III. CONCLUSION
We lack appellate jurisdiction to consider KDOL’s argument that it does not
have the capacity to be sued and DISMISS the appeal as to that claim. The district
court was correct to reject KDOL’s claim of Eleventh Amendment immunity as to
Ms. Arbogast’s Rehabilitation Act claims and we AFFIRM as to that claim.
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