Miller, et al v. TX Tech Univ Hlth

United States Court of Appeals
Fifth Circuit
F I L E D
May 13, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-10190
_______________
LUCINDA G. MILLER
AND
ELAINE KING MILLER,
Plaintiffs-Appellees,
VERSUS
TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before SMITH, BARKSDALE, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Texas Tech University Health Sciences
Center (“Tech”) appeals an order denying its
motion to dismiss Elaine King Miller’s claim of
a violation of § 504 the Rehabilitation Act of
1973, 29 U.S.C. § 794. Tech argues that it
enjoys state sovereign immunity from King
Miller’s § 504 claim. On the basis of Pace v.
Bogalusa City Sch. Bd., 325 F.3d 609 (5th
Cir. 2003),1 which binds us, we reverse and
remand with instruction to dismiss the claim.
1 See also Johnson v. La. Dep’t of Educ., No.
02-30318, 2003 U.S. App. LEXIS 8482 (5th Cir.
May 5, 2003) (following Pace).

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I.
King Miller began working as an
administrator and professor at Tech in 1997.
She notified Tech that she suffered from a
degenerative eye condition in August 1998;
she was diagnosed as legally blind in 1999. In
2000, she sued Tech for allegedly failing to
accommodate her disability in violation of
§ 504, which prohibits discrimination against
the disabled by programs receiving federal
funds.2
Tech concedes that King Miller suffers a
“disability” as defined in § 504 and that Tech
received federal funds from 1998 to 2000.
Nevertheless, Tech moved to dismiss on the
basis of state sovereign immunity. The district
court denied the motion, and Tech filed this
interlocutory appeal.3
II.
“[T]he [Constitutional] Convention did not
disturb States’ immunity from private suits,
thus firmly enshrining this principle in our con-
stitutional framework.” Fed. Mar. Comm’n v.
S.C. State Ports Auth., 535 U.S. 743 (2002).
The Eleventh Amendment partially reflects this
principle by prohibiting “[t]he Judicial power
of the United States” from extending to suits
against a state “by Citizens of another State, or
by Citizens or subjects of any Foreign State.”
U.S. CONST. amend. XI. Some therefore refer
to the states’ immunity from suit as “Eleventh
Amendment immunity.”
Yet, “[t]he phrase is . . . something of a
misnomer, for the sovereign immunity of the
States neither derives from nor is limited by
the terms of the Eleventh Amendment.” Alden
v. Maine, 527 U.S. 706, 713 (1999). Rather,
state sovereign immunity is a structural
constitutional principle barring all suits against
a state, including suits by a resident of the
state. S.C. State Ports Auth., 535 U.S. at 753
(“[T]he Eleventh Amendment does not define
the scope of the States’ immunity; it is but one
particular exemplification of that immunity.”).
Thus, King Miller’s § 504 claim is subject to
Tech’s sovereign immunity,4 even though King
Miller is a resident of Texas.
The Supreme Court has recognized two ex-
ceptions to the doctrine of state sovereign im-
munity. Coll. Sav. Bank v. Fla. Prepaid Post-
secondary Educ. Expense Bd., 527 U.S. 666,
670 (1999). First, Congress may abrogate
state sovereign immunity using its power un-
der section 5 of the Fourteenth Amendment.
Id. King Miller does not contend that
Congress has abrogated Tech’s sovereign
immunity against her claim. Congress indeed
purported to abrogate state sovereign
immunity against § 504 claims. 42 U.S.C. §
2000d-7 (“A State shall not be immune under
the Eleventh Amendment . . . from suit in
Federal court for a violation of section
2 Section 504 states in pertinent part, “No
otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be
excluded from participation in, be denied the bene-
fits of, or be subjected to discrimination under any
program or activity receiving Federal financial as-
sistance . . . .” 29 U.S.C. § 794(a).
3 A denial of a motion to dismiss based on state
sovereign immunity is appealable. Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 143-45 (1993). King Miller’s other
causes of action and those of her co-plaintiff, Lu-
cinda Miller, are awaiting trial pending our deci-
sion in this appeal.
4 King Miller concedes that Tech is an arm of
the state and therefore entitled to Texas’s sovereign
immunity. See, e.g., Perez v. Region 20 Educ.
Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002).

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504[.]”). We held in Reickenbacker v. Foster,
274 F.3d 974 (5th Cir. 2001), that § 2000d-7
did not validly abrogate state sovereign
immunity under the Supreme Court’s recent
caselaw.5
Second, a state may waive its sovereign im-
munity by consenting to suit. Coll. Sav. Bank,
527 U.S. at 670. A state may waive its
immunity for its own reasons or, as the
Supreme Court has suggested, in exchange for
some “gratuity” from Congress. Id. at 686.
King Miller argues that § 2000d-7 conditions
the receipt of federal funds on a waiver of sov-
ereign immunity and that Tech waived its sov-
ereign immunity by accepting funds.
Tech responds that it did not knowingly
waive its sovereign immunity by accepting fed-
eral funds from 1998 to 2000, because it rea-
sonably believed that Congress already had ab-
rogated its immunity with § 2000d-7. We
adopted this very argument in Pace, holding
that the state could not knowingly waive its
immunity under § 2000d-7 by accepting funds
from 1996 to 1998. Pace, 325 F.3d at 617.6
Accordingly, Tech did not knowingly waive its
immunity.7
“In dicta, the Supreme Court has stated that
Congress may require states to waive their
sovereign immunity as a condition for
receiving federal funds.” Id. at 615 (citing
Coll. Sav. Bank, 527 U.S. at 686-87). We
make two inquiries in determining whether a
state has waived its sovereign immunity by
accepting federal funds. First, “Congress must
‘manifest[ ] a clear intent to condition
participation in the programs funded under the
[relevant] Act on a State’s consent to waive its
constitutional immunity.’” Id. (quoting Atas-
cadero State Hosp. v. Scanlon, 473 U.S. 234,
247 (1985)). Second, we ask whether the
state knowingly and voluntarily intended to
waive its immunity by accepting the funds. Id.
at 616-17.
Section 2000d-7 satisfies the “clear
statement” rule by conditioning receipt of
federal funds on a state’s waiver of sovereign
immunity. In Pederson v. La. State Univ., 213
F.3d 858, 876 (5th Cir. 2000), we held that
§ 2000d-7 “clearly, unambiguously, and un-
equivocally conditions receipt of federal funds
under Title IX on the State’s waiver of
[sovereign] immunity.” In Pace, 325 F.3d at
615, “we extend[ed] that portion of the
Pederson holding to § 504 of the
Rehabilitation Act as well.” Thus, although
§ 2000d-7 does not validly abrogate state sov-
ereign immunity, it “may also be viewed as a
conditional waiver provision enacted pursuant
to Congress’s spending power.” Id.
“That § 2000d-7 authorizes a conditional
waiver does not, however, equate with [a
state’s] having waived its sovereign immunity
by accepting federal funds under the
Rehabilitation Act.” Id.. Of course, the two
inquiries overlap in most cases. If a federal
statute unambiguously conditions receipt of
federal funds on a waiver of sovereign
immunity, then the courts usually may infer
5 See Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001); Kimel v. Fla. Bd. of Re-
gents, 528 U.S. 62 (2000); Fla. Prepaid Postsec-
ondary Educ. Expense Bd. v. Coll. Sav. Bank, 527
U.S. 627 (1999); City of Boerne v. Flores, 521
U.S. 507 (1997).
6 See also Johnson, 2003 U.S. App. LEXIS
8482, at *4 (following Pace).
7 We therefore do not address Tech’s alternative
argument that it lacked state-law authority to waive
its sovereign immunity.

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that the state knowingly and voluntarily
waived its immunity by accepting the funds.
Indeed, the main purpose of the clear
statement rule is to ensure that states
understand the bargain: Accept federal funds
and thereby waive sovereign immunity.
As with Pace, though, this case is not like
most cases. “An effective waiver of a state’s
sovereign immunity is the ‘intentional
relinquishment or abandonment of a known
right or privilege.’” Id. at 616 (quoting Coll.
Sav. Bank, 527 U.S. at 682 (emphasis added)).
From 1998 to 2000, Tech could not have
known that it retained any sovereign immunity
to waive. This is so because § 2000d-7, aside
from being an unambiguous conditional-waiver
statute, is also an “unequivocal statement[ ] of
intent to abrogate.” Reickenbacker, 274 F.3d
at 977. At the time, Tech “had little reason to
doubt the validity of Congress’s asserted abro-
gation of state sovereign immunity under
§ 504.” Pace, 325 F.3d at 616.
Like the defendants in Pace, id. at 616-17,
Tech accepted federal funds after Seminole
Tribe v. Florida, 517 U.S. 44 (1996) (holding
that Congress may abrogate state sovereign
immunity only with its section 5 powers), and
City of Boerne v. Flores, 521 U.S. 507 (1997)
(explaining and limiting Congress’s section 5
powers). Perhaps Tech should have had the
considerable foresight to understand by late
1997 how Seminole Tribe and City of Boerne
combined to limit sharply Congress’s power to
abrogate the states’ sovereign immunity under
section 5. See supra note 4.
Unfortunately, this court’s decision in
Coolbaugh v. Louisiana, 136 F.3d 430 (5th
Cir. 1998), overruled by Reickenbacker, 274
F.3d at 981, quickly obscured any such
foresight. Pace, 325 F.3d at 616-17. In Cool-
baugh, issued months before King Miller in-
formed Tech of her disability, this court held
that the Americans with Disabilities Act, 42
U.S.C. § 12202, validly abrogates state
sovereign immunity. Coolbaugh implicated
the validity of not only § 12202, but also
§ 2000d-7: “Because Title II of the ADA and
§ 504 of the Rehabilitation Act offer virtually
identical protections, the abrogation analysis
with regard to the two statutes i s the same.”
Pace, 325 F.3d at 616 n.11 (collecting cases).
We must “‘indulge every reasonable
presumption against waiver’ of fundamental
constitutional rights,” including state sovereign
immunity. Coll. Sav. Bank, 527 U.S. at 682
(quoting Aetna Ins. Co. v. Kennedy ex rel.
Bogash, 301 U.S. 389, 393 (1937)). Given
this court’s error (since overruled) in Cool-
baugh, we cannot reasonably presume that
Tech anticipated Reickenbacker and knew that
it retained sovereign immunity that it would
waive by accepting federal funds. Pace, 325
F.3d at 616-17. The far more reasonable pre-
sumption is that “[b]elieving that [§ 2000d-7]
validly abrogated [its] sovereign immunity,
[Tech] did not and could not know that [it]
retained any sovereign immunity to waive by
accepting conditioned federal funds.” Id.
at 616.8
8 As in Pace, we need not decide whether Tech
could knowingly waive its sovereign immunity un-
der § 2000d-7 after the Supreme Court’s decision
in Garrett or our decision in Reickenbacker. See
Pace, 325 F.3d at 616 n.10, 618 n.15. In Garrett,
531 U.S. at 360, the Court held that § 12202 did
not validly abrogate state sovereign immunity for
claims under title I of the ADA. Garrett obviously
undermined the rationale of Coolbaugh, 136 F.3d
at 437-38, which did not distinguish between titles
I and II. Indeed, Reickenbacker, 274 F.3d at 981,
overruled Coolbaugh based on Garrett. Whether
(continued...)

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What looks like a hard but plain choice in
retrospectSSaccept funds and thereby waive
sovereign immunitySSat the time was in fact an
easy and carefree choice for TechSSaccept
funds without consequence, because
§ 2000d-7 appeared already to have abrogated
Tech’s immunity. Tech’s “actions were
voluntary, but [it] did not manifest a knowing
waiver of that which [it] could not know [it]
had the power to waive.” Id. at 616-17. To
hold otherwise and impute to Tech a degree of
omniscience would undermine the “central
purpose” of the doctrine of state sovereign im-
munity: “to ‘accord the States the respect
owed them as’ joint sovereigns.” S.C. State
Ports Auth., 535 U.S. at 765 (quoting Puerto
Rico Aqueduct & Sewer Auth., 506 U.S.
at 146).9
The order of the district court is
REVERSED, and this matter is REMANDED
with instruction to dismiss King Miller’s § 504
claim against Tech.
(...continued)
Garrett or Reickenbacker reasonably placed Tech
on notice that it retained immunity to waive under
§ 2000d-7 is immaterial to this case, because King
Miller filed this suit before either Garrett issued in
February 2001 or Reickenbacker issued in De-
cember 2001.
9 As with Pace, 325 F.3d at 618 n.15, our
decision today represents something of a Pyrrhic
victory for Tech, because it now knows that it has
sovereign immunity to waive by accepting federal
funds. The rationale of Pace, in other words, ap-
plies to a limited number of historical cases as a
result of fast-developing sovereign-immunity jur-
isprudence at the Supreme Court and this court.

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