* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 24 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
SHIRLEY A. RANDALL,

Plaintiff-Appellee,

v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS,

Defendant-Appellant. No. 00-5209 (D.C. No. 99-CV-886-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO, and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Defendant appeals the district court’s denial of it s motion for summary judgment based on Eleventh Amendment immunity in th is action brought by plaintiff under Title I of the Americans With Disab ilities Act, 42 U.S.C. §§ 12111-12117 (“ADA”). We have jurisdiction to he ar this interlocutory appeal pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147 (1993) (applying Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949)). At the time the district court denied defendant’s m otion, controlling Tenth Circuit precedent provided that Congress validly ab rogated the States’ Eleventh Amendment immunity in enacting Title I of the ADA. Cisneros v. Wilson , 226 F.3d 1113, 1128 (10th Cir. 2000). Between the time defendant filed its opening brief on appeal and plaintiff filed her res ponse brief, however, the Supreme Court ruled that Congress did not validly abrogate the States’ Eleventh Amendment immunity in Title I of the ADA, effectively overruling Cisneros

. Board of Trustees v. Garrett , 531 U.S. 356, ___, 121 S. Ct. 955, 964-68 (2001). Plaintiff concedes in her appellate brief that Garrett controls here. Appellee’s Br. at 1, 5. Plaintiff argues, however, that she should be award ed her fees and costs on appeal because at the time defendant took this appe al, it was legally frivolous in light of our holding in Cisneros . Plaintiff complains of defendant’s failure to-3-

recognize Cisneros as controlling authority in its opening brief to this court or in proceedings before the district court. Further, sh e maintains that this appeal was unnecessary because defendant could have simply awa ited the Supreme Court’s decision in Garrett and, if favorable, defendant could have moved agai n to have the district court dismiss the case. We deny plaintiff’s request for appellate fees and costs. We cannot say that defendant’s appeal was frivolous in light of the pendency of Garrett and of its ultimate resolution. Nor can we say that defendantacted improperly in pursuing an appeal rather than sitting on its appellate rights and awaiting the outcome of the proceedings in Garrett . We do, however, strongly admonish defendant for failing to cite Cisneros in its opening brief. The proper course would hav e been for defendant to recognize the controlling nature of Cisneros and argue for its overruling. By failing to do so, defendant eschewe d its obligation of fairness and candor to this court. The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED and the action is REMANDED to the district court with directions to dismiss the case as barred underthe Eleventh Amendment. Plaintiff’s motion to file a supplemental answer br ief is DENIED.
Entered for the Court-4- David M. Ebel Circuit Judge