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concluding that UTSMC is an arm of the state of Texas and that the plaintiff's claims under the ADA are barred by the Eleventh Amendment
Summary of this case from Daniel v. U.T. Sw. Med. Ctr.Opinion
Civil Action No. 3:03-CV-0452-L
November 18, 2003
FINDINGS, CONCLUSIONS, RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Defendant's Motion to Dismiss, filed April 4, 2003, Plaintiff's Response to Defendant's Motion to Dismiss, filed April 24, 2003, and Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss, filed May 9, 2003. The preceding pleadings were referred to the undersigned United States Magistrate Judge pursuant to the District Court's Order of Reference, filed May 21, 2003, which referred this matter for hearing, if necessary, and recommendation. Based on the pleadings and the applicable law, the Court is of the opinion that Defendant's Motion to Dismiss should be GRANTED.
I. BACKGROUND
Plaintiff Mark D. Keithly ("Keithly") filed this suit against his former employer, the University of Texas Southwestern Medical Center at Dallas ("UTSMC"), pursuant to Titles I and II of the Americans with Disabilities Act, 42 U.S.C. § 12101 to 12213 ("ADA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983; and the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.001 — § 21.556 (Vernon 1996 Supp. 2001). Keithly alleges that UTSMC discriminated against him by terminating his employment as a UTSMC police officer after Keithly refused to submit to being sprayed in the face with pepper spray during training. (Compl. at 4-5.) He claims that he did not submit to the pepper spray on the advice of his doctor because he suffers from chronic rhinosinusitis, nasal polyposis, and allergic rhinitis. See id. at 4. Keithly alleges that because he declined that portion of his training, UTSMC offered to employ him as a "decommissioned" officer. See id. at 5. Keithly further alleges that thereafter, UTSMC terminated his employment due to his refusal to complete that portion of his training. Keithly contends that UTSMC's termination of his employment was intentional discrimination on the basis of his disability. See id. Keithly requests monetary damages and a jury trial. See id. at 8.
II. ANALYSIS
UTSMC moves to dismiss Keithly's claims for monetary relief under Titles I and II of the ADA for lack of subject matter jurisdiction on grounds that these claims are barred by the Eleventh Amendment and state sovereign immunity. (Mot. at 2-9.) Keithly responds that the agency lacks immunity for three reasons: (1) the clear language of the ADA abrogates state sovereign and Eleventh Amendment immunity; (2) Congress abrogated state sovereign immunity by enacting the ADA under the Thirteenth Amendment; and (3) UTSMC waived any Eleventh Amendment immunity by removing this case to federal court. (Resp. at 1-7.) A. Legal Standard for a 12(b)(1) Motion to Dismiss
The Eleventh Amendment reads: "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.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See FED. R. Civ. P. 12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. See Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The Fifth Circuit recognizes a distinction between a "facial attack" and a "factual attack" upon a complaint's subject matter jurisdiction. See Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998). "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. See id. (citation omitted). However, if the defendant supports the motion with evidence, then the attack is "factual," and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of the attack, "[t]he plaintiff constantly bears the burden of proof that jurisdiction does exist." Rodriguez, 992 F. Supp. at 879 ("The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.") (citations omitted). The instant case is a facial attack. UTSMC argues that Keithly's jurisdictional claims fail on legal, not factual, grounds, and UTSMC does not support its motion with any evidence. Accordingly, all of Keithly's factual allegations will be accepted as true.
B. UTSMC's Eleventh Amendment Immunity from ADA Claims
UTSMC contends that Keithly's ADA claims are barred by Eleventh Amendment immunity and state sovereign immunity. (Mot. at 2.) "The Supreme Court has construed the Eleventh Amendment under principles of sovereign immunity to establish that a state is generally immune from any action brought against it in federal court by one of its citizens." Whitehead v. Johnson County Mental Health and Mental Retardation Center, 1997 WL 74714, *1 (N.D. Tex. Feb. 12, 1997) (footnote omitted) (citing Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984)). This immunity extends to agencies of the state. See Pennhurst, 465 U.S. at 100; see also Gaines v. Texas Tech University, 965 F. Supp. 886, 889 n. 4 (N.D. Tex. 1997). "Eleventh Amendment sovereign immunity deprives a federal court of jurisdiction to hear a suit against a state." Warnock v. Pecos County, Tex., 88 F.3d 341, 342 (5th Cir. 1996); see also Stokes v. Scott, 2000 WL 343185, at * 1 (N.D. Tex. Mar. 31, 2000) (dismissing claim under Rule 12(b)(1) as barred by the Eleventh Amendment).
Keithly requests monetary damages under Title I of the ADA, alleging that UTSMC failed to make "reasonable accommodations" for his disability, terminated his employment, and used qualifications standards that "tend to screen out an individual with a disability or class of individuals with disabilities." (Compl. at 6.) As a state institution, UTSMC is an agency of Texas; therefore, Keithly's claims against UTSMC are actually claims against Texas. See Pennhurst, 465 U.S. at 100; see also Gaines, 965 F. Supp. at 889. Because Keithly's request for monetary relief under Title I is a claim against Texas, and any money damages would be paid by Texas, his claims for monetary relief under Title I are barred by the Eleventh Amendment. See Warnock, 88 F.3d at 342.
Keithly also requests monetary damages under Title II of the ADA for UTSMC's alleged discrimination. (Compl. at 6-7.) The Fifth Circuit has twice recently held that states have immunity from suits under Title II of the ADA. See Reickenbacker v. Foster 274 F.3d 975, 983 (5th Cir. 2001) (holding that the "accommodation obligation imposed by Title II and § 504 of the Rehabilitation Act far exceeds that imposed by the Constitution, we cannot conclude that they are proportional and congruent to the legislative findings of unconstitutional discrimination against the disabled by the States."); see also Pace v. Bogalusa City School Board, 325 F.3d 609, 623 (5th Cir. 2003) (finding that district court lacked jurisdiction to consider plaintiff's claims under the ADA and § 504 of the Rehabilitation Act).
Accordingly, Keithly's claims for monetary damages under Title I and II of the ADA are barred by the Eleventh Amendment.
C. Abrogation of Eleventh Amendment State Sovereign Immunity
1. Plain Language of the ADA
According to Keithly, his claims under Title I and II are not barred by state sovereign or Eleventh Amendment immunity because the plain language of the ADA abrogates such immunity. It is clear that in passing the ADA, Congress intended to abrogate a state's Eleventh Amendment immunity for claims brought under the act. See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). Despite this clear language, the Supreme Court subsequently held in Garrett that states retain their immunity from suits for monetary damages under Title I of the ADA under the Eleventh Amendment. See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 372 (2001). The Supreme Court reasoned that congressional legislation of state action under Section Five of the Fourteenth Amendment "must exhibit `congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'" Id. (quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997)). The Supreme Court found that in passing the ADA, Congress failed to "identify a pattern of irrational state discrimination in employment against the disabled," and that Title I's remedies were not congruent and proportional to any legislative finding of discrimination. See id. at 368 and 372. According to Garrett, suits against the state for money damages under Title I of the ADA are barred by the Eleventh Amendment because Congress exceeded its power under Section Five of the Fourteenth Amendment. See id. at 374.
Relying on Garrett, the Fifth Circuit recently held that an agency of the state of Texas enjoyed Eleventh Amendment immunity from Title I claims. See Perez v. Region 20 Education Service Center, 307 F.3d 318, 331 (5th Cir. 2002). District courts have likewise dismissed Title I claims against Louisiana and Texas. See Samaha v. Granier, 2003 WL 21277135, at *2 (E.D. La. May 30, 2003) (dismissing Title I claim against a judge in his official capacity because it was barred by the Eleventh Amendment under the Garrett holding); Ramos v. Texas Department of Criminal Justice, 2002 WL 1492574, at *1 (W.D. Tex. Feb. 11, 2002) (dismissing Title I claim for money damages against state department). Similarly, the Fifth Circuit has recently held that states also retain immunity from claims under Title II. See Reickenbacker v. Foster 274 F.3d 975, 983 (5th Cir. 2001) ("Since the accommodation obligation imposed by Title II . . . far exceeds that imposed by the Constitution, we cannot conclude that they are proportional and congruent to the legislative findings of unconstitutional discrimination against the disabled by the States.").
Accordingly, Keithly's argument that Congress abrogated Texas's Eleventh Amendment immunity from claims for monetary damages under the ADA fails.
2. The Thirteenth Amendment
In a related argument, Keithly contends that Congress abrogated state immunity from ADA claims because it enacted the ADA pursuant to Section Two of the Thirteenth Amendment to the United States Constitution. (Resp. at 1, 3-5.) Keithly cites case law explaining that the Thirteenth Amendment gave Congress the power to "abolish the `badges and incidents' of slavery and involuntary servitude." (Resp. at 5.) Keithly argues that this case law provides that Congress's Thirteenth Amendment power reaches "various forms of discrimination — race-based or otherwise." See id. Keithly reasons that "unjust employment practices and invidious, class-based discrimination are both `badges and incidents' of slavery and involuntary servitude." Keithly concludes that because the ADA prohibits unjust employment practices against the disabled, then Congress must have passed the ADA under its Thirteenth Amendment power. See id.
The Thirteenth Amendment reads: "Section One. Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section Two. Congress shall have power to enforce this article by appropriate legislation." U.S. CONST, amend. XIII. Section Two allows Congress to pass laws prohibiting racial discrimination. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968) ("Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.").
Keithly's argument regarding the basis for the ADA fails for numerous reasons. First, the ADA was not enacted pursuant to the Thirteenth Amendment. Indeed, the ADA's plain language states that it was passed pursuant to the Fourteenth Amendment and the Commerce Clause: "It is the purpose of this chapter — . . . (4) to invoke the sweep of congressional authority, including the power to enforce thefourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." 42 U.S.C. § 12101 (b)(4) (emphasis added). Second, the cases cited by Keithly unanimously analyze racial discrimination, not disability discrimination. (Resp. at 5.) hi fact, all but one of the cases predate the ADA by decades — one by over one hundred years. The only case cited that post-dates the ADA is United States v. Nelson, 277 F.3d 164 (2d Cir. 2002). Although Keithly cites Nelson to illustrate an expansion of Congress's Thirteenth Amendment power, Nelson is distinguishable from the instant case in two ways. First, the statute at issue in Nelson was a federal criminal statute passed pursuant to the Thirteenth Amendment. See Nelson, 277 F.3d at 175 (citing 18 U.S.C. § 245(b)(2)(B)). The ADA is a civil statute prohibiting disability discrimination in certain situations:
The ADA was passed July 26, 1990. See Americans With Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327. Keithly primarily cites cases discussing the Thirteenth Amendment from 1888 to 1976.
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.42 U.S.C. § 12182(a). The analysis of the criminal statute in Nelson does not address, much less explain, the constitutional basis for the ADA.
Second, the Nelson court analyzed the criminal statute at issue in the framework of racial discrimination. The court reasoned that "`race' as used in Thirteenth Amendment jurisprudence is a term of art, whose meaning is not limited by today's usage." Nelson, 277 F.3d at 176. The court explained that Jews "are today generally not considered a distinct race, [but that] does not rule out Jews from the shelter of the Thirteenth Amendment." Id. at 177-78 (citing Supreme Court case law and federal legislation that recognized Thirteenth Amendment protection for a Jewish "race"). The Nelson court concluded that "Jews were among the `races' intended to be protected from slavery and involuntary servitude by the Thirteenth Amendment, and that Congress may today protect Jews pursuant to that Amendment." Id. at 178.
Keithly assumes, but does not explain how, the disabled are a "race" within the meaning of Nelson and Thirteenth Amendment jurisprudence. Indeed, Keithly has cited no case law or other authority, in this circuit or any other, that has extended Nelson or the Thirteenth Amendment to disability discrimination. This Court declines to make such a broad extension, especially in light of the clear basis upon which the ADA was enacted. Consequently, Keithly's arguments regarding congressional abrogation of Eleventh Amendment immunity from ADA claims fail.
D. Removal to Federal Court
Keithly also contends that UTSMC waived its Eleventh Amendment immunity when it removed this case to federal court. (Resp. at 6.) UTSMC responds that removal did not waive its Eleventh Amendment immunity because Keithly's ADA claims are federal claims and the state has not waived its immunity with respect to such claims at the state level. (Mot. at 4.)
Keithly relies on the Supreme Court's discussion of waiver in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 614 (2002). In Lapides, the plaintiff asserted state law claims against a state in state court. The state had already waived its immunity with respect to such claims at the state level by statute. Nevertheless, the state removed the action to federal court and raised Eleventh Amendment immunity. The Supreme Court determined that because the state had already waived its sovereign immunity with regard to those claims at the state level, it could not remove the case to federal court and assert Eleventh Amendment immunity. See Lapides, 535 U.S. at 617. The Supreme Court limited its analysis of waiver to only those claims "to which the State has explicitly waived immunity from state-court proceedings." Id. In limiting its holding, Lapides did not decide whether a state waives Eleventh Amendment immunity to federal claims by removal when its sovereign immunity has not been waived with respect to those claims at the state level.
The law in this circuit provides scant definitive guidance on this issue. The general rule regarding waiver of Eleventh Amendment immunity is that "must be unequivocally expressed." Perez, 307 F.3d at 332 (citing Edelman v. Jordan, 415 U.S. 651, 673 (1974), and Magnolia Venture Capital Corp. v. Prudential Sec., Inc., 151 F.3d 439, 443-44 (5th Cir. 1998)). A state may expressly waive its immunity or evidence an unequivocal waiver through actions other than an express renunciation. See Neinast v. Texas, 217 F.3d 275, 279 (5th Cir. 2000).
The Fifth Circuit has twice declined to decide this issue because it was asserted for the first time on appeal. See Martinez v. Texas Department of Criminal Justice 300 F.3d 567, 575 (5th Cir. 2002) (explaining that "we will not consider her newly raised waiver-by-removal claim."); see also Perez v. Region 20 Education Service Center, 307 F.3d 318 (5th Cir. 2002) (same). Meyers v. State of Texas, No. 02-50452, is currently pending before the Fifth Circuit and may decide whether a state waives its sovereign immunity under Title II of the ADA by removing the case to federal court. In that case, the district court expressed misgivings with regard to allowing "the state to avail itself of federal court jurisdiction, and then seek dismissal on Eleventh Amendment grounds," but the court noted that this "is the result reached under current Eleventh Amendment jurisprudence." Meyers v. State of Texas, No. 00-CA-430-SS, at 6 (W.D. Tex. April 17, 2001).
In Neinast, Texas was sued in federal court and its only filing was a motion to dismiss — it did not file an answer nor had it "participated in any proceedings indicating an intent to try the matter on the merits. . . . Texas gained no benefit by federal court jurisdiction and did not lead Neinast to believe that it intended to try the case in federal court." Id. at 280. The Fifth Circuit concluded that "Texas did not unequivocally waive its right to assert immunity from suit." Id. The Neinast court explained that "[c]ourts have found waiver in two general varieties of cases: where the state asserted claims of its own or evidenced an intent to defend the suit against it on the merits." Id. (citing Dekalb County Div. of Family Children Servs. v. Platter, 140 F.3d 676, 680 (7th Cir. 1998) (finding that a state waived immunity by filing an adversary proceeding in bankruptcy court), and Paul N. Howard Co. v. Puerto Rico Aqueduct Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984) (finding immunity waived where state filed counterclaim and third-party complaint)). The Fifth Circuit further noted that the "common thread among these cases is that the state cannot simultaneously proceed past the motion and answer stage to the merits and hold back an immunity defense." Id. (emphasis added).
Here, UTSMC has not proceeded past the motion and answer stage, nor had it held back an immunity defense; it asserted Eleventh Amendment immunity soon after this case was removed. Nevertheless, Keithly argues that the simple act of removal is an unequivocal waiver based on the Tenth Circuit's extension of Lapides in Estes v. Wyoming Department of Transportation, 302 F.3d 1200 (10th Cir. 2002). (Resp. at 6.) In Estes, the Tenth Circuit noted
In limiting its holding to state-law claims, Lapides does not squarely answer whether the mere act of removing federal-law claims waives a State's sovereign immunity in federal court. However, based on the Supreme Court's analysis in Lapides and our own circuit's precedent in this area, we conclude that WDOT has waived its sovereign immunity for the ADA claim.Id. at 1204. In finding waiver-by-removal, the Tenth Circuit relied on the affirmative actions of the state that would normally be consistent with voluntarily invoking jurisdiction, finding that the state
unambiguously invoked the jurisdiction of the federal court. In the February 28, 2000, Notice of Removal, WDOT argued that the federal court had jurisdiction over the ADA claim because it arose under federal law, thus `satisfy[ing] the original jurisdiction requirement for removal under Section 1441(a).'Id. at 1205 n. 1. "It is only when a State removes federal-law claims from state court to federal court that it `submits its rights for judicial determination,' and unequivocally invokes the jurisdiction of the federal courts." Estes, 302 F.3d at 1206 (citation omitted). Keithly argues that, just as in Estes, UTSMC's Notice of Removal evidences an equivocal waiver of its Eleventh Amendment immunity.
Contrary to the broad interpretation of waiver in Estes, the Supreme Court has not indicated that Eleventh Amendment immunity is always waived upon removal by a state. Indeed, the Supreme Court has recognized Eleventh Amendment immunity after removal: "at the time of removal, this case fell within the `original jurisdiction' of the federal courts. The State's later invocation of the Eleventh Amendment placed the particular claim beyond the power of the federal courts to decide, but it did not destroy removal jurisdiction over the entire case." Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 391 (1998). "We repeat our conclusion: A State's proper assertion of an Eleventh Amendment bar after removal means that the federal court cannot hear the barred claim." Id. Notwithstanding the state's removal and answer in Schacht, the district court found that the state could successfully assert Eleventh Amendment immunity. See id.
In light of Schacht and the Fifth Circuit's requirement of unequivocal waiver, the Court does not find waiver on the facts of this case for several reasons. First, the Tenth Circuit's broad extension of Lapides in Estes was based in part on the Tenth Circuit's own precedent. That precedent is not controlling authority in the Fifth Circuit. See, e.g., Taylor v. Charter Medical Corp., 162 F.3d 827, 832 (5th Cir. 1998) (reasoning that a Tenth Circuit's decision was not entitled to "stare decisis effect in this Circuit because it is a Tenth Circuit case, and there is no rule of intercircuit stare decisis."). Second, the predicate for Estes — the Lapides decision itself — expressly limited its ruling to state law claims asserted against a state that had already waived immunity with respect to those claims at the state level. See Lapides, 535 U.S. at 617 ("It has become clear that we must limit our answer to the context of state-law claims, in respect to which the State has explicitly waived immunity from state-court proceedings."). Waiver in this case is not dictated by Lapides because this case concerns federal law claims with no waiver at the state level. Third, as shown in Schacht, the Supreme Court has not uniformly precluded a state's assertion of Eleventh Amendment immunity after removal. See Schacht, 524 U.S. at 391 ("We repeat our conclusion: A State's proper assertion of an Eleventh Amendment bar after removal means that the federal court cannot hear the barred claim."). Likewise, other district courts in this circuit have recognized that the mere act of removal does not provide waiver. See, e.g., Meyers, No. 00-CA-430-SS, at 6 (noting that "the result reached under current Eleventh Amendment jurisprudence" allows "the state to avail itself of federal court jurisdiction, and then seek dismissal on Eleventh Amendment grounds"). Fourth, the Fifth Circuit's own precedent requires an unequivocal waiver, which is ordinarily found "in two general varieties of cases: where the state asserted claims of its own or evidenced an intent to defend the suit against it on the merits." Neinast, 217 F.3d at 280. This case fits neither variety.
For these reasons, the Court does not find that UTSMC unequivocally waived its Eleventh Amendment immunity by removal of this suit to this Court. See id.; accord Watters v. Metropolitan Area Transit Authority 295 F.3d 36, 42 n. 13 (D.C. Cir. 2002) (finding that because the defendants had "not waived immunity from attorney's liens in their courts, the narrow holding of Lapides does not apply to this case."). Consequently, Keithly's waiver argument fails.
III. CONCLUSION
In conclusion, Keithly's claims for monetary damages under ADA are barred by Eleventh Amendment immunity. Congress has not abrogated this immunity, and UTSMC did not waive this immunity. As a result, UTSMC's motion to dismiss should be granted, and Keithly's claims under Titles I and II of the ADA should be dismissed.
IV. RECOMMENDATION
For the foregoing reasons, the Court RECOMMENDS that Defendant's Motion to Dismiss be GRANTED and that Keithly's claims under Titles I and II of the ADA be dismissed.
SO RECOMMENDED.