IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,286
L. JOHN PURVIS,
Appellant,
v.
STEVE WILLIAMS, ROB MANES, AND ROB LADNER,
Appellees.
SYLLABUS BY THE COURT
1. A motion for judgment on the pleadings requires the trial court to determine whether, upon the admitted facts, the plaintiff has stated a cause of action. If successful, the motion can dispose of the case without a trial because the pleadings frame the issues in such a way that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real triable issue. The motion operates as an admission by movant of all fact allegations in the opposing party's pleadings.
2. Interpretation of a statute is a question of law, subject to unlimited review, and the appellate court is not bound by the decision of the trial court. When the issue involves a federal statute, it is within the power of the appellate court to interpret it, absent any otherwise binding court ruling.
3. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. � 794 (2000), prohibits discrimination against the disabled by recipients of federal funds. The provision is enforceable through a private cause of action with remedies as proscribed in Title VI of the Civil Rights Act of 1964, 42 U.S.C. � 2000d et seq. (2000), which prohibits racial discrimination in federally funded programs and activities.
4. To state a cause of action of discrimination under the Rehabilitation Act, the petition must allege the following elements: (1) the plaintiff is handicapped within the meaning of the Act; (2) the plaintiff is otherwise qualified to perform the job; (3) the plaintiff was discharged because of his or her handicap; and (4) that the employer is a recipient of federal financial assistance.
5. In construing federal statutes, state courts should seek direction from the decisions of federal courts interpreting similar language and should assume in the absence of indications to the contrary that Congress intends the words in its enactments to carry their ordinary, contemporary, and common meanings. The unambiguous meaning of the words used within a statute must be regarded as conclusive in the absence of a clearly expressed legislative intent to the contrary.
6. Defendants in their individual capacities are not liable for claims brought under the Rehabilitation Act since they do not meet the ordinary, contemporary, and common definition of an "instrumentality" as that term is contained within the statutory definition of "program or activity" under subsection (b)(1)(A) of the Rehabilitation Act found at 29 U.S.C. � 794 (2000).
7. An appellate court reviews the question of whether sovereign immunity has been waived de novo.
8. State immunity may be relinquished in three ways: (1) where the state has consented to suit; (2) where the application of Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and its progeny is appropriate; or (3) where Congress has abrogated the state's immunity.
9. In Kansas, the consent to suit or waiver of sovereign immunity must be based on State action, meaning legislative enactments expressing the will of the elected officials and cannot be based on acts of agents. Kansas has not consented to suit under the Rehabilitation Act.
10. A two-prong test is used to determine whether Congress has abrogated a state's immunity when enacting legislation: (1) Congress must unequivocally express its intent to abrogate the immunity; and (2) Congress must act pursuant to a valid exercise of its power in so doing.
11. As to prong one, Congress has not unequivocally expressed its intent to abrogate Kansas' immunity in our own state courts when sued under the federal Rehabilitation Act. 42 U.S.C. � 2000d-7(a)(1) (2000) references suit in federal court, not state court.
12. Under the ordinary rule of statutory construction, if Congress intends to alter the usual balance between the states and the federal government, it must make its intention to do so unmistakably clear in the language of the statute. Statutes should be construed as to avoid difficult constitutional questions. Based on these principles, � 42 U.S.C. 2000(d)- 7(a)(1) (2000) pertaining to the Rehabilitation Act, does not reflect an unequivocal expression of Congress' intent to waive Kansas' sovereign immunity against Rehabilitation Act claims brought for money damages in state court.
13. To state a valid claim pursuant to 42 U.S.C. � 1983 (2000), a petition must allege two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or federal law. The provision itself is not a source of rights, but rather a method for vindicating other federal rights conferred elsewhere.
14. A plaintiff alleging a violation of a federal statute is permitted to sue under 42 U.S.C. � 1983 (2000) unless (1) the statute does not create enforceable rights, privileges, or immunities within the meaning of � 1983; or (2) Congress foreclosed such enforcement of the statute in the enactment itself.
15. A plaintiff has no enforceable right under the Rehabilitation Act to vindicate against individuals acting in their individual capacities and is, therefore, not entitled to bring a 42 U.S.C. � 1983 (2000) claim against such parties.
16. Plaintiff who did not exhaust administrative remedies could not bring a common-law claim for retaliatory discharge since the Kansas Civil Service Act provides a complete procedure for administrative review in cases where an employee in the classified service of the State complains of a wrongful dismissal. The dismissed employee is required to exhaust all administrative remedies before bringing an independent action to challenge the dismissal.
Appeal from Shawnee district court, TERRY L. BULLOCK, judge. Opinion filed July 25, 2003. Affirmed.
Penny D. Moylan, of Bennett, Hendrix & Moylan, of Topeka, argued the cause, and Mark L. Bennett, of the same firm, was with her on the briefs for appellant.
M. J. Willoughby, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with her on the brief for appellee.
The opinion of the court was delivered by
BRAZIL, S.J.: Plaintiff, L. John Purvis, a former conservation officer with the Kansas Department of Wildlife and Parks, brought an employment discrimination suit against department officials in their individual and official capacities (Defendants). He claimed Defendants, in terminating his employment, (1) violated 29 U.S.C. § 794 (2000) of the federal Rehabilitation Act; (2) violated federal civil rights law under 42 U.S.C. § 1983 (2000); and (3) discharged him in retaliation for exercising his rights under the Kansas Civil Service System and for exercising rights afforded to handicapped individuals. The trial court granted Defendants' motion for judgment on the pleadings and entered a memorandum decision and order dismissing all three claims. Jurisdiction is pursuant to K.S.A. 20-3018(c), transfer by court's motion.
On appeal, Purvis argues that the trial court erred in ruling that (1) he could not maintain an action under the Rehabilitation Act against the Defendants in their individual capacities; (2) sovereign immunity precludes suit in a state court under the Rehabilitation Act against the Defendants in their official capacities; (3) he failed to state a valid 42 U.S.C. § 1983 cause of action; and (4) he could not maintain an action for retaliatory discharge because he failed to exhaust his administrative remedies.
We affirm.
The parties agree that facts from Purvis' original petition are relevant. They are summarized as follows:
In July 1992, the Kansas Department of Wildlife and Parks (the Department) hired Purvis as a conservation officer. On May 14, 1999, the Department terminated Purvis' employment. Purvis alleged in his complaint, without specifying, that he had a disability or handicap and that the Department terminated him solely because of his disability or handicap. Purvis also alleged he was a permanent employee of the Kansas Civil Service System with the right to access the protections afforded by the system.
Purvis claims that he received several satisfactory or excellent performance evaluation ratings. In August 1997, he took a leave of absence for medical reasons. He claims his supervisor, Rob Ladner, and the Department, were aware of his medical problems. In December 1997, Purvis requested shared leave pursuant to K.A.R. 1-9-23. The Department denied this request and required Purvis to return to work.
Following his return to work, Purvis claims the Defendants imposed conditions and restrictions upon him which were not necessary to the completion or performance of his job duties. Thereafter, in October 1998, Purvis received his first unsatisfactory performance rating. Approximately 6 months later, he received a second unsatisfactory rating. Shortly thereafter, on April 16, 1999, defendant Ladner, Purvis' supervisor, recommended that the Department terminate Purvis' employment.
On May 14, 2001, Purvis filed a three-count suit naming Ladner, Steve Williams, and Rob Manes as defendants, in both their individual and official capacities. He asserted claims under 29 U.S.C. § 794 of the Rehabilitation Act, 42 U. S. C. § 1983, and the common-law theory of retaliatory discharge. Defendants note in their brief that the petition does not allege that Purvis exhausted any administrative remedies before filing suit.
When Purvis was terminated, Williams was the secretary of the Department, Manes was the assistant secretary of operations for the Department, and Ladner was the regional supervisor. Defendants, through the attorney general, filed a motion to dismiss or for judgment on the pleadings. After subsequent pleadings in response and reply, the district court granted judgment on the pleadings as to all three claims.
Common to all issues is that they arise from the district court's decision granting judgment on the pleadings. A motion for judgment on the pleadings requires the trial court to determine whether, upon the admitted facts, the plaintiff has stated a cause of action. Jack v. City of Wichita, 23 Kan. App. 2d 606, 607-08, 933 P.2d 787 (1997) (citing Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 [1970]). If successful, the motion can dispose of the case without a trial because the pleadings frame the issues in such a way that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real triable issue. Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 140, 519 P.2d 682 (1974). The motion operates as an admission by movant of all fact allegations in the opposing party's pleadings. 214 Kan. at 140.
The district court cites the standard for summary judgment; however, neither party contends the district court relied on matters outside the pleadings. Thus, there was no need to consider the motion as one for summary judgment. K.S.A. 60-212(c).
PURVIS' ACTION UNDER THE REHABILITATION ACT
AGAINST DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES
Standard of Review
The district court disposed of the Rehabilitation Act claim against Defendants in their individual capacities by determining that the plain or ordinary meaning of the statute does not create personal liability. Interpretation of a statute is a question of law, and this court's review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). On this question the court is not bound by the decision of the trial court. Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Although the issue involves a federal statute, it is within the power of the court to interpret it, absent any otherwise binding court ruling. In re Estate of Tubbs, 21 Kan. App. 2d 395, 403, 900 P.2d 865, rev. denied 258 Kan. 858 (1995) (citing 16 Am. Jur. 2d, Constitutional Law § 78.)
The Rehabilitation Act
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2000) prohibits discrimination against the disabled by recipients of federal funds. The provision is enforceable through a private cause of action with remedies as prescribed in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (2000), which prohibits racial discrimination in federally funded programs and activities. Barnes v. Gorman, 536 U.S. 181, 184-85, 153 L. Ed. 2d 230, 122 S. Ct. 2097 (2002). The Rehabilitation Act states:
"No 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 . . . ." (Emphasis added) 29 U.S.C. § 794(a).
Under the Act, a "program or activity" is defined as the operations of "a department, agency, special purpose district, or other instrumentality of a State or local government." 29 U.S.C. § 794(b)(1)(A).
To state a cause of action of discrimination under the Rehabilitation Act, Purvis was required to allege the following elements in his petition: (1) He is handicapped within the meaning of the Act; (2) that he is otherwise qualified to perform the job; (3) that he was discharged because of his handicap; and (4) that his employer is a recipient of federal financial assistance. Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2nd Cir. 2003).
Discussion
Purvis argued below that Defendants are liable under the Rehabilitation Act in their individual capacities because they act as instrumentalities of the state of Kansas. The district court rejected this argument by construing the Rehabilitation Act and determining that had Congress intended to include individual officials within the definition of "program or activity" as set forth in subsection(b)(1)(A), Congress would have inserted the appropriate language into the Act. In concluding Defendants, either in their individual or official capacities, did not fit within any categories of the definition, the district court further noted that the Act refers to a "program or activity receiving Federal financial assistance."
Our Court of Appeals, in In re Estate of Tubbs, 21 Kan. App. 2d at 404, collected authorities setting forth principles to guide a state court in construing federal statutes:
"Where possible in construing federal statutes, state courts should seek direction from the decisions of federal courts interpreting similar language. See Lytle v. Southern Ry.-Carolina Division, 171 S.C. 221, 224, 171 S.E. 42, cert. denied 290 U.S. 645, 54 S. Ct. 63, 78 L. Ed. 560 (1933), 90 A.L.R. 915. Courts should assume in the absence of indications to the contrary that Congress intends the words in its enactments to carry their ordinary, contemporary, and common meanings. Pioneer Investment v. Brunswick, 507 U.S. 380, 386, 113 S. Ct. 1489, 1494, 123 L. Ed. 2d 74, 85 (1993). The unambiguous meaning of the words used within a statute must be regarded as conclusive in the absence of a clearly expressed legislative intent to the contrary. Reves v. Ernst & Young, 507 U.S. 170, 177, 113 S. Ct. 1163, 1169, 122 L. Ed. 2d 525, 535 (1993)."
The term at issue in the present case is "instrumentality." Employing a definitional analysis, Black's Law Dictionary 802 (7th ed. 1999), defines "instrumentality" as a thing used to achieve an end or purpose, or a means or agency through which a function of another entity is accomplished. The American Heritage Dictionary 681 (8th edition 1971), defines "instrumentality" as the quality or circumstance of being instrumental. That same source defines "instrumental" as serving as an instrument; helpful, or as of, pertaining to, or accomplished with an instrument. "Instrument" is then further defined as a means by which something is done; agency, or one used to accomplish some purpose. Under this analysis, Defendants as employees or officials might meet the definition; but it is clear that Defendants, when acting in their individual capacities, are not acting as instrumentalities, and therefore are not a "program or activity."
Purvis argues that the following language from Evans v. Newton, 382 U.S. 296, 299-300, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966), should supply the definition of instrumentality: "[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State." This argument is misguided for at least two reasons. First, the Evans case is not on point. The Evans Court was applying the state action doctrine in a case challenging a segregated city park; it was not construing the Rehabilitation Act, enacted 7 years later. Second, importing the definition from a case decided decades ago violates the assumption that Congress intended the word "instrumentality" to carry its ordinary, contemporary, and common meaning.
In other words, Purvis' interpretation of the term "instrumentalities," as it is contained within the phrase "program or activity receiving Federal financial assistance," is not consistent with the ordinary meaning of the words used by Congress in the Rehabilitation Act. Therefore, the statute, 29 U.S.C. § 794, simply cannot be construed to impose liability in this case on Defendants in their individual capacity.
The district court also relied on three cases that dismissed Rehabilitation Act claims against parties in their individual capacities. In Castro Ortiz v. Fajardo, 133 F. Supp. 2d 143, 150-51 (D. Puerto Rico 2001), the court surveyed the law on this issue, collecting several cases. The court concluded that while the First Circuit Court of Appeals and the United States Supreme Court have yet to decide the issue of individual liability, the majority of the circuits that have confronted the issue have held that no personal liability can attach to agents and supervisors under the Rehabilitation Act. 133 F. Supp. 2d at 150-51. Purvis attacks the Ortiz case and minimizes its holding. Nevertheless, it stands for the notion that individuals, in their individual capacities, are not "a program or activity receiving Federal financial assistance." Moreover, one other court has found it persuasive. See Mitchell v. Massachusetts Dept. of Correction, 190 F. Supp. 2d 204, 213 (2002) (following the weight of authority including Ortiz).
The district court also cited to Montez v. Romer, 32 F. Supp. 2d 1235, 1240-41 (D. Colo. 1999), and to Moore v. Cooksey, 2000 WL 1838274, an unpublished Tenth Circuit case. Montez involved a class action suit brought by prisoners with various disabilities seeking relief against the corrections department and state officials under numerous theories including the Rehabilitation Act and the Americans with Disabilities Act (ADA). . Montez held that plaintiffs could not assert claims under either the ADA or the Rehabilitation Act against individuals in their individual capacities. 32 F. Supp. 2d at 1243. Moore reached the same conclusion as to the Rehabilitation Act. Though unpublished, the Moore court relied on Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir. 1999), that the Rehabilitation Act does not permit actions against persons in their individual capacities.
Purvis takes issue with the reasoning in the Montez decision by misconstruing its holding and approach. Montez determined that nothing in the language of either the ADA or the Rehabilitation Act explicitly authorizes or prohibits suits against individuals operating in their individual capacities. Based on this premise, the decision sought guidance from the sections of the Civil Rights Act of 1964 which both the ADA and Rehabilitation Act invoke. The Montez court explained its reasoning as follows:
"Only 42 U.S.C. § 2000e-16(c) explicitly addresses the issue [of suing individuals in their individual capacities], providing in employment actions against the federal government, that the 'head of the department, agency, or unit, as appropriate shall be the defendant.' [Citations omitted]. This statutory directive suggests that plaintiffs cannot assert [ADA and Rehabilitation Act] claims against individuals in their individual capacities." Montez, 32 F. Supp. 2d at 1240.
Purvis' main concern in his brief about the persuasiveness of the authorities used by the district court to decide this issue is somewhat tempered by the fact the Tenth Circuit continued to cite these cases after Purvis filed his brief. See Neiberger v. Hawkins, 208 F.R.D. 301, 312 (D. Colo. 2002) (relying on Montez, Moore, and Hiler, the Neiberger court held that individual defendants are not subject to liability in their individual capacities and dismissed the Rehabilitation Act claim.)
Purvis marshalls authority from nine federal district court cases for the proposition that some courts have held that individuals, in their individual capacities, may be liable under Title VII or the ADA. None of these cases come from the Tenth Circuit, and most do not stand for the precise proposition at issue here. One case expressly recognizes it is taking the minority view. See Schallehn v. Central Trust and Sav. Bank, 877 F. Supp. 1315, 1331 (N.D. Iowa 1995). These authorities are no more or less persuasive than those cited by the district court. All that Purvis has established is that jurisdictions are split on the issue.
In his reply brief, Purvis cites five additional authorities (including four from the same Second Circuit) on the individual capacity liability issue: Robinson v. Gorman, 145 F. Supp. 2d 201 (D. Conn. 2001); Lee v. Trustees of Dartmouth College, 958 F. Supp. 37 (D. N.H. 1997); Johnson v. New York Hospital, 897 F. Supp. 83, 86 (S.D. N.Y. 1995), aff'd 96 F.3d 33 (2nd Cir. 1996); Doe v. City of Chicago, 883 F. Supp. 1126 (N.D. Ill. 1994); and Chaplin v. Consolidated Edison Co. of New York, 587 F. Supp. 519, 521 (S.D. N.Y. 1984). Gorman is not analogous and the holding was limited to the factual circumstances. That case involved a landlord-tenant relationship where the landlords "were ostensibly in a position to accept or reject federal funds in connection with the housing program in which they and the Plaintiff participated." 145 F. Supp. 2d at 206. In essence, the individuals were the sole "program or activity."
The remaining authorities cited, in sum, are part of a small line of cases which resolve the individual capacity liability issue by focusing on the term "under" in the phrase "under any program or activity receiving Federal financial assistance." These cases reason that since the Act does not say, "by any program or activity receiving" a court is required to look at the role of the defendant employee to see if he or she is in a position to accept or reject funds or make discriminatory policy making decisions. Chaplin, 587 F. Supp. at 521.
Purvis' argument, based on this line of cases, is not persuasive for several reasons. Technically, it represents a different theory of statutory construction than what Purvis presented below, and, at least arguably, should not even be considered on appeal. Jack v. City of Wichita, 23 Kan. App. 2d 606, 610, 933 P.2d 787 (1997). Further, the underpinning case, Chaplin, cited in Johnson and Doe, is considered overruled by a 1992 amendment to the Rehabilitation Act. See Lane v. Maryhaven Center of Hope, 944 F. Supp. 158, 164 (E.D. N.Y. 1996).
In Purvis' case, we find that the district court correctly granted judgment on the Rehabilitation Act claim for the Defendants in their individual capacities. The statutory construction rationale and the case authorities, though not binding on this court, support the district court's decision.
PURVIS' ACTION UNDER THE REHABILITATION ACT
AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES
Standard of Review
An appellate court reviews the question of whether sovereign immunity has been waived de novo. Shaw v. United States, 213 F.3d 545, 548 (10th Cir. 2000).
District Court Ruling
A claim against individuals in their official capacity is equivalent to a claim brought against the state. See e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Purvis argued below that Defendants could not rely on sovereign immunity as a bar to his Rehabilitation Act claim. The district court disagreed by concluding that under the line of Kansas Supreme Court cases following Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S. Ct 2240, (1999), Defendants, acting in their official capacities, were immune in state court from a Rehabilitation Act suit for money damages. We agree.
Discussion
The Eleventh Amendment of the United States Constitution states:
"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."
The concept of sovereign immunity is often and conveniently referred to as Eleventh Amendment immunity. Sovereign immunity is also considered to be inherent, existing prior to the ratification of the Constitution. See Alden, 527 U.S. at 712-13.
In Alden v. Maine, a 5-4 divided Court held that the "powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits [based on federal law] for damages in state courts." Alden, 527 U.S. at 712. The case involved a suit by a group of probation officers against the state of Maine alleging Maine violated the overtime provisions of the federal Fair Labor Standards Act. See Connelly v. State Highway Patrol, 271 Kan. 944, 961, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
Six months after the Alden decision, our Supreme Court decided Schall v. Wichita State University, 269 Kan. 456, 7 P.3d 1144 (2000). Schall extensively examined the Alden decision, and that discussion will not be repeated here. See 269 Kan. at 463-66; Breer and Pulikkan, Governmental Immunity: Recent Developments concerning the Eleventh Amendment and the Kansas Tort Claims Act, 70 J.K.B.A. 24 (Aug. 2001).
Schall involved a suit between a terminated professor and his employer filed under the American with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the common-law breach of contract theory. The employer, Wichita State University, raised sovereign immunity as a defense. 269 Kan. at 461. The immunity discussion in Schall concluded that Kansas has sovereign immunity from claims by individuals based on federal law even when such claims are brought in state court. Connelly, 271 Kan. at 961 (citing Schall, 269 Kan. at 466).
As noted in Connelly, Schall stated three ways immunity may be relinquished:
"'Courts have set forth three ways that state immunity may be relinquished: (1) where the state has consented to suit; (2) where the application of Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and its progeny is appropriate; or (3) where Congress has abrogated the state's immunity.'" 271 Kan. at 961 (quoting Schall, 269 Kan. at 466).
In Kansas, the consent to suit or waiver of sovereign immunity must be based on State action, meaning legislative enactments expressing the will of the elected officials and cannot be based on acts of agents. Connelly, 271 Kan. at 962. The relinquishment under Ex parte Young involves "prospective injunctive" relief. Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 28, 20 P.3d 39 (2001). Kansas has not consented to suit under the Rehabilitation Act and Purvis' petition specifically seeks only monetary damages and attorney fees. Compare Schall, 269 Kan. at 466 (no consent to suit under ADA or FMLA). Thus, the only question to consider is whether Congress has effectively abrogated the State's immunity. Compare Praeger, 271 Kan. 1, 27-28.
A two-prong test is used to determine whether Congress has abrogated a state's immunity when enacting legislation: (1) Congress must unequivocally express its intent to abrogate the immunity; and (2) Congress must act pursuant to a valid exercise of its power in so doing. Schall, 269 Kan. at 466-67.
Schall found that 42 U.S.C. § 12202 (1994) of the ADA satisfied the first prong. That provision states:
"A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of [the ADA]."
Schall then went on to analyze the second prong, noting that the United States Supreme Court had granted certiorari in Garrett v. University of Alabama, 193 F.3d 1214, 1218 (11th Cir. 1999) (holding that both the ADA and the Rehabilitation Act are within the scope of Congressional power and that the states' Eleventh Amendment immunity was effectively abrogated). The Supreme Court reversed the Eleventh Circuit and held that the legislative record of the ADA did not support the abrogation of the states' Eleventh Amendment immunity from suits for money damages because it failed to show that Congress identified a pattern of irrational state discrimination in employment against the disabled by the States. Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 358, 148 L. Ed. 2d 866, 121 S. Ct. 955 (2001).
Debate continues among the circuits as to the issue Garrett did not review, i.e., immunity against claims brought under the Rehabilitation Act. The Eleventh Circuit ultimately decided the issue on remand, holding