Blewett William Thomas v. University of Houston

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
November 4, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 02-20988
____________________
BLEWETT WILLIAM THOMAS
Plaintiff-Appellee
v.
UNIVERSITY OF HOUSTON
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
_________________________________________________________________
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges
PER CURIAM:*
Our recent decisions in Miller v. Tex. Tech Univ. Health
Sci. Ctr., 421 F.3d 342 (5th Cir. 2005) (en banc), and Pace v.
Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (en banc),
resolve all of the remaining issues raised in this appeal. We
therefore AFFIRM the district court’s holding that the defendant-
appellant, the University of Houston, is not immune under the

-- 1 of 5 --

2
Eleventh Amendment to the suit of the plaintiff-appellee, Blewett
William Thomas, based on § 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794.
DISCUSSION
Plaintiff-appellee Blewett William Thomas (“Thomas”) alleges
that the Social Security Administration found him to be
temporarily and totally disabled as a result of stress and
illness resulting from his employment as a litigation attorney.
To rectify this disability, Thomas claims that his physicians
directed him to suspend all employment and undertake a
rehabilitation program. Specifically, Thomas’s physicians
allegedly advised him to eschew litigation and to return to a
formal academic environment. This suit resulted.
To fulfill his rehabilitation program, Thomas repeatedly
applied to the Master of Laws (“LL.M”) program offered by the Law
Center of defendant-appellant, the University of Houston
(“University of Houston” or “University”), beginning in October
of 1998. In conjunction with this first application, Thomas
allegedly informed the University about his disability status and
the nature of his planned rehabilitation. The University
rejected this initial application to the LL.M program at the Law
Center, but Thomas did win admission to the University’s
Department of Foreign and Classical Languages as a post-
baccalaureate student in Russian Studies. Undaunted by his

-- 2 of 5 --

2 Thomas’s complaint also alleged that the University
breached duties of good faith and fair dealing during his
application process. This claim was dismissed along with most of
his constitutional claims by the district court.
3 Section 504 of the Rehabilitation Act of 1973 provides
that “[n]o 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). This “antidiscrimination mandate” was enacted
to “enlist[] all programs receiving federal funds” in Congress’s
attempt to eliminate discrimination against individuals with
disabilities. Sch. Bd. of Nassau County v. Arline, 480 U.S. 273,
286 n. 15, 277 (1987).
3
initial failure, and apparently unsatisfied with Russian Studies,
Thomas redoubled his efforts to enter the University’s LL.M
program. Unfortunately, his subsequent applications met with no
greater success than his initial efforts.
Following at least three rejections by the University’s LL.M
program, Thomas filed this suit in the Southern District of
Texas, Houston Division, on February 14, 2001. In his complaint,
Thomas alleged the University committed multiple violations of
his constitutional rights as part of a continuing pattern of
discrimination and retaliation against him during the period of
October 15, 1998 through March 30, 2000.2 The University moved
to dismiss, claiming Eleventh Amendment immunity. The district
court dismissed most of Thomas’s claims, but it refused to
dismiss his claim under § 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794 (“§ 504”).3 See District Ct. Op. at 6-8
(declining to dismiss Thomas’s Rehabilitation Act claim, after

-- 3 of 5 --

4
surveying recent precedent from this court and other
jurisdictions about waiver of sovereign immunity for states that
accept federal funds under the Rehabilitation Act).
The University appealed the district court’s decision to
this court. On January 17, 2003, we granted the United States’s
unopposed motion to intervene to defend the constitutionality of
42 U.S.C. § 2000d-7. We held this case in abeyance pending our
en banc opinions in Pace and Miller.
The only issue before us in this appeal is whether the
University, an undisputed arm of the state of Texas, can assert
sovereign immunity under the Eleventh Amendment against Thomas’s
§ 504 claims. “We review Eleventh Amendment immunity
determinations . . . de novo as a question of law.” United
States v. Tex. Tech Univ., 171 F.3d 279, 288 (5th Cir. 1999)
(citing Ussery v. Louisiana, 150 F.3d 431, 434 (5th Cir. 1998)).
The statute at issue is 42 U.S.C. § 2000d-7, which reads 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 . . . or the provisions
of any other Federal statute prohibiting discrimination
by recipients of Federal financial assistance.
Congress enacted this provision in order to demonstrate to state
agencies that eligibility for federal financial assistance is
conditional upon waiver of Eleventh Amendment immunity to
discrimination suits under the identified statutes. See Pederson

-- 4 of 5 --

4 Our holding in this matter accords with the decisions of
our sister circuits. As we stated in Miller,
[w]e agree with the four circuit courts that have
addressed this issue and concluded that, if the
involved state agency or department accepts federal
financial assistance, it waives its Eleventh Amendment
immunity even though the federal funds are not
earmarked for programs that further the anti-
discrimination and rehabilitation goals of § 504.
421 F.3d at 349 (citing Barbour v. Wash. Metro. Area Transit
Auth., 374 F.3d 1161 (D.C. Cir. 2004); Lovell v. Chandler, 303
F.3d 1039 (9th Cir. 2002); Koslow v. Pennsylvania, 302 F.3d 161
(3d Cir. 2002); Jim C. v. United States, Atkins Sch. Dist., 235
F.3d 1079 (8th Cir. 2000) (en banc)).
5
v. La. State Univ., 213 F.3d 858, 875-76 (5th Cir. 2000)
(concluding that Section 2000d-7 validly conditions acceptance of
federal funds on a waiver of sovereign immunity to claims under
Title IX); see also Lane v. Pena, 518 U.S. 187, 197-200 (1996).
This court has resolved this precise issue in two recent en
banc decisions. Then as now, we held that a state “waive[s]
Eleventh Amendment immunity from suit under § 504 by accepting
federal funds under such circumstances [the express conditions of
42 U.S.C. § 2000d-7].” Miller, 421 F.3d at 347 (citing Pace, 403
F.3d at 272).4 In a supplemental letter brief filed after our
recent decisions, the University concedes that “[t]his appeal
presents the same issues, and is thus governed by Miller.”
(Appellant’s Supplemental Letter Br. at 1.) We agree.
Accordingly, the decision of the district court is
AFFIRMED.

-- 5 of 5 --