Espinoza v. TX Dept of Pub Sfty

United States Court of Appeals
Fifth Circuit
F I L E D
August 25, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-11168
Summary Calendar
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JULIE DUNLOP ESPINOZA,
Plaintiff-Appellee,
VERSUS
TEXAS DEPARTMENT OF PUBLIC SAFETY; ET AL.,
Defendants,
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:00-CV-1975-L
_________________________

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2
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Julie Espinoza sued the Texas Department
of Public Safety (“TDPS”) for alleged viola-
tions of title II of the Americans with Disabili-
ties Act (“ADA”), 42 U.S.C. § 12132, and
§ 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794(a). Based on intervening deci-
sions from the Supreme Court and this court,1
Espinoza conceded that her ADA claim was
barred by sovereign immunity2 but maintained
that her § 504 Rehabilitation Act claim for in-
junctive relief was not.
TDPS moved the district court to dismiss
the § 504 claim on the basis of state sovereign
immunity. Concluding that TDPS had waived
its immunity from suit under § 504 of the Re-
habilitation Act by accepting federal funds pur-
suant to 42 U.S.C. 2000d-7, the district court
denied the motion to dismiss, and TDPS took
this interlocutory appeal.
During the pendency of this appeal, we de-
cided Pace v. Bogalusa City Sch. Bd., 403
F.3d 272 (5th Cir. 2005) (en banc), which, as
TDPS has appropriately acknowledged in sup-
plemental briefing, forecloses all but two of its
arguments for reversing the denial of sovereign
immunity: (1) that despite accepting federal
funds conditioned on a waiver of immunity, it
does not have authority, as a matter of state
law, t o waive immunity from suit in federal
court; and (2) that §§ 504 and 2000d-7 fail the
relatedness requirement set forth in South
Dakota v. Dole, 483 U.S. 203 (1987).
Although not addressed in Pace, those conten-
tions are now foreclosed by in Miller v. Tex.
Tech Univ. Health Scis. Ctr., 2005 U.S. App.
LEXIS 17244 (5th Cir. Aug. 15, 2005) (en
banc).
Therefore, based on these precedents, we
AFFIRM the denial of TDPS’s motion to dis-
miss on the basis of state sovereign immunity,
and we REMAND this matter for further pro-
ceedings.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 See Board of Trustees of Univ. of Ala. v. Gar-
rett, 531 U.S. 356 (2001) (holding that title I of the
ADA did not validly abrogate state sovereign
immunity pursuant to Section Five of the Four-
teenth Amendment); Reickenbacker v. Foster, 274
F.3d 974 (5th Cir. 2001) (holding that title II of the
ADA and § 504 the Rehabilitation Act, which offer
protections almost identical to those of the ADA,
did not validly abrogate state sovereign immunity
pursuant to Section Five of the Fourteenth
Amendment).
2 Thereafter, on leave from the district court,
Espinoza amended her complaint to assert an ADA
claim against the director of the TDPS in his
official capacity under Ex Parte Young, 209 U.S.
123 (1908), for which she sought prospective in-
junctive relief and attorney’s fees. No challenge to
this claim is presently before us.

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