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United States Court of Appeals
Fifth Circuit
F I L E D
In the
May 13, 2003
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
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
enjoys state sovereign immunity from King
EMILIO M. GARZA, Circuit Judges.
Miller's § 504 claim. On the basis of Pace v.
Bogalusa City Sch. Bd., 325 F.3d 609 (5th
JERRY E. SMITH, Circuit Judge:
Cir. 2003),1 which binds us, we reverse and
remand with instruction to dismiss the claim.
Texas Tech University Health Sciences
Center ("Tech") appeals an order denying its
motion to dismiss Elaine King Miller's claim of
1
a violation of § 504 the Rehabilitation Act of
See also Johnson v. La. Dep't of Educ., No.
02-30318, 2003 U.S. App. LEXIS 8482 (5th Cir.
1973, 29 U.S.C. § 794. Tech argues that it
May 5, 2003) (following Pace).

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

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

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

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.
5