United States Court of Appeals

Fifth Circuit



## FILED

May 5, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 02-30318

______________________

THEODORE JOHNSON,

Plaintiff - Appellee,

v.

LOUISIANA DEPARTMENT OF EDUCATION; ET AL,

Defendants,

LOUISIANA DEPARTMENT OF EDUCATION; STATE OF LOUISIANA;

PRESIDENT OF LOUISIANA STATE UNIVERSITY SYSTEM;

BOARD OF REGENTS,

Defendants - Appellants.

______________________

No. 02-30369

______________________

LYNN AUGUST,

Plaintiff - Appellee,

v.

SUZANNE MITCHELL; MAE NELSON; ED BARRAS; DEPARTMENT OF

SOCIAL SERVICES, for the State of Louisiana

Defendants - Appellants.

______________________________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

______________________________________________2

Before JONES, WIENER, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

BACKGROUND

This court consolidated the cases of Theodore Johnson and

Lynn August due to the common issue whether Eleventh Amendment

sovereign immunity bars claims for money damages against entities

of the state of Louisiana, which arose during a particular time

period, brought under § 504 of the Rehabilitation Act. The

district courts refused to dismiss the claims. Based on the recent

decision of this court in P ace v. Bogalusa City Sch. Bd. , No.

01-31026, 2003 WL 1455194 (5 th Cir. Mar. 24, 2003) , we vacate and

r emand with instructions to dismiss the claims for lack of

jurisdiction.

Appellee Johnson was a full time student at the

University of New Orleans (UNO) on financial aid. He is disabled

by a partial paralysis of his left foot. In February 2000, a

medical emergency caused Johnson to withdraw from UNO. Four months

later, UNO revoked Johnson’s eligibility for financial aid.

Johnson successfully appealed the decision. The appeals committee,

however, did not inform Johnson of its decision until after the

fall 2000 semester had begun; the committee also imposed academic

requirements to maint ain his eligibility for financial aid.

Johnson asserts that because of his late start in fall semester

classes, he was unable to comply with the acade mic requirements.1 The district court dismissed UNO as a defendant, concluding that the Board of

Supervisors of Louisiana State University and Agricultural and Mechanical College is the proper

party to sue on behalf of UNO. Johnson amended his complaint to name the Board of

Supervisors as a defendant.

3 In January 2001, UNO denied Johnson financial aid for the spring

semester. Johnson filed suit against the Louisiana Department of

Education, the State of Louisiana, the President of the Louisiana

State University System, the Louisiana Board of Regents, and UNO 1

under 42 U.S.C. § 1983, Title II of the Americans with Disabilities

Act (ADA), and § 504 of the Rehabilitation Act, alleging

discrimination against disabled students and failure to provide

reasonable accommodations.

August, a blind man, worked as a computer instructor for

the Louisiana Department of Social Services (DSS). In June 2000,

DSS eliminated August’s teachi n g duties, averring that August

failed to submit “manual materials” required for use in the

computer course. August contended, to the contrary, that he

submitted the necessary materials at the same time as a sighted

instructor whose materials were approved. August brought various

claims for money damages against the DSS and three state employees

in their official capacities, including claims under the ADA and

the Rehabilitation Act.

Separate district courts in the Eastern Distri c t of

Louisiana dismissed all c laims against the defendants based on2 Both courts acknowledged that no scope was left for congressional abrogation of state

sovereign immunity by means of § 504 after this court’s decision in Reickenbacker

, supra

.

4 state sovereign immunity except for those under § 504 of the

Rehabilitation Act. The defendants appeal, arguing that state

sovereign immunity bars the appellees’ § 504 claims. Under the

collateral order doctrine, appell ate jurisdiction exists over an

appeal from the denial of a motion to dismiss based on state

sovereign immunity. R eickenbacker v. Foster

, 274 F.3d 974, 976 (5 th

Cir. 2001).

DISCUSSION

In denying the appellants’ motions to dismiss Johnson’s

and August’s § 504 claims, the district courts concluded that the

appellants waived their state sovereign immunity under the

Rehabilitation Act by receiving federal funds. 2 This court reviews

denials of motions to dismiss based on state sovereign immunity de

novo. I d

. T his court’s recent decision in Pace

, 2003 WL 1455194,

mandates a different conclusion.

Under the Constitution’s Article I spending power,

Congress may require a state to waive its sovereign immunity as a

condition for receiving federal funds if two condit ions are met.

Id. at *3-4. First, “Congress must ‘manifest[ ] a clear intent to

condition participation in the programs funded under the [relevant]

Act on a State’s consent to waive its constitutio nal immunity.’”3 42 U.S.C. § 2000d-7 provides in pertinent part that “[a]

State shall not be immune under the Eleventh Amendment of the

Constitution of the United States from suit in Federal court for

a violation of section 504 of the Rehabilitation Act of 1973.”

4 Johnson alleges wro ngful acts by the appellants in 2000 and in

January 2001, and August alleges wrongful acts in 1999 and 2000.

5 Id. at *3 (quoting Atascadero State Hosp. v. Scanlon

, 473 U.S. 234,

247, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171, 183 (1985)). Second,

the state must knowingly and voluntarily waive its immunity by

accepting the funds. Id. at *4-5.

Pace held that 42 U .S.C. § 2000d-7 3 clearly,

unambiguously, and unequivocally conditions the receipt of federal

funds on a state’s waiver of sovereign immunity under § 504 of the

Rehabilitation Ac t. Id. at *3. Like the defendants in Pace,

however, the appellants in this case did not knowingly waive their

sovereign immunity under § 504 by accepting federal funds. Johnson

and August both complain of violations of § 504 that occurred

before the Supreme Court’s decision in Bd. of Trustees of the Univ.

of Ala. v. Garrett

, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866

(2001) (holding that Title I of the ADA does not validly abrogate

state sovereign imm unity pursuant to § 5 of the Fourteenth

Amendment) and this court’s decision in Reickenbacker

, 274 F.3d at

976 (concluding that Title II of the ADA and § 504 of the

Rehabilitation Act do not validly abrogate state sovereign immunity

pursuant to Fourteenth Amendment § 5 powers). 4 As we explained in5 The abrogation analysis with regard to Title II of the ADA and § 504 of the

Rehabilitation Act is the same because both acts offer virtually identical protections. Pace , 2003

WL 1455194, at *5 n.11; Reickenbacker , 274 F.3d at 977 n.17.

6 We therefore need not reach the appellants’ alternative argument that they lacked

authority under state law to waive their sovereign immunity against suit in federal court.

6 Pace

, prior to Garrett and Reickenbacker the appellants had “little

reason to doubt the validity of Congress’s asserted abrogation of

state sovereign immunity under § 504 of the Rehabilitation Act or

Tit le II of the ADA,” i d. at *5, especially given this court’s

decision in Coolbaugh v. Louisiana , 136 F.3d 430 (5 t h Cir. 1998)

(holding that the ADA validly abrogated state sovereign immunity as

an exercise of Fourteenth Amendme nt § 5 powers), o verruled by

Reickenbacker

, 274 F.3d 974 (5 th Cir. 2001). “Believing that the

acts validly abrogated their sovereign immunity, the [appellants]

did not and could not know that they retained any sovereign

immunity to waive by accepting conditioned federal funds.” Pace

,

2003 WL 1455194, at *5. 5 B ecause the appellants could not have

knowingly waived their sovereign immunity during the period covered

by their lawsuits, Johnson’s and Augus t’s individual claims for

money damages under § 504 are barred. 6 We re-emphasize the court’s

comment in Pace that the State’s victory will be temporally

confined, since after Garrett

, the state could knowingly waive its

immu nity by voluntarily continuing to receive federal funds

conditioned on waiver. See id. at *6 n.15.7 CONCLUSION

State sovereign immunity bars Johnson’s and August’s § 504

claims for money damages against the appellants. We therefore

vacate the district courts’ denials of the appellants’ motions to

dismiss and reman d with instructions to dismiss these claims for

lack of jurisdiction.

VACATED and REMANDED.******* Because of an artificially created, and, in my judgment, unfortunate sequence of

events, it is impossible at this juncture to determine whether this writing will be a special

concurrence or a dissent: (1) In November 2002, a panel of this court comprising Judges Jones,

Smith, and —— by designation —— Siler of the Sixth Circuit, heard oral argument in Pace v.

Bogalusa City School Board , No. 01-31026, and Judge Jones, as presiding judge of the panel,

allotted the writing assignment to herself; (2) on February 11, 2003, while Pace remained under

submission, a panel of this court comprising Judge Jones, myself, and DeMoss heard argument on

the instant case, and Judge Jones, as presiding judge of the panel, allotted the writing assignment

to herself; (3) six weeks later, on March 24, 2003, while the instant case remained under

submission, Judge Jones filed her opinion in Pace , 2003 WL 1455194 (5th Cir. Mar. 24, 2003);

and (4) on April 9, 2003, Judge Jones circulated to the panel her foregoing opinion in the instant

case, rejecting my suggestion that prudence and orderliness require holding this case in abeyance

until the time for filing petitions for rehearing in Pace expires (it still has not) and the mandate

issues, either as a result of (a) our failure to rehear Pace en banc, (b) our having reheard and

disposed of Pace en banc. Thus, until the mandate issues in Pace , finally determining the issue

that controls in that case and in this one, it will be impossible to classify my writing either as a

special concurrence or as a dissent. Only time will tell.

8 Wiener, Circuit Judge, either dissenting or specially

concurring

. *******

The premise of the instant case is simple: Exercising its

Spe nding Clause powers, Congress offers education funds to the

sev eral states under Title X, on the c ondition

, pellucidly

expressed in 42 U.S.C. § 2000d-7(a)(1), that states accepting such

funds will not be immune under the Eleventh Amendment from suit in

federal court for violation of § 504 of the Rehabilitation Act and

other named federal statutes, including Title IX, the Individuals

with Disabilities in Education Act (“IDEA”), and the Americans with

Disabil ities Act (“ADA”). The Louisiana defendants accepted the

funds on that express condition, then proceeded to assert sovereign

immunity under the Eleventh Amendment after being sued in federal1 Id.

2 274 F.3d 974 (5th Cir. 2001).

3 Pace , 2003 WL 1455194, at *1-*5.

9 court on claims grounded in the Rehabilitation Act. The panel

majority has accepted the Louisiana defendants’s premise, reversed

the district court, and granted immunity.

The decision in this case, though, is not ours to make, at

least not yet. Only if the very recent (and as yet not

precedential) decision by a prior panel of this court is not

reheard en banc, or is reheard but is decided the same way, will

this panel be bound. I refer to P ace v. Bogalusa City School

Board

, 1 which involved precisely the same assertion s of Eleventh

Amendment immunity by Louisiana defendants in a lawsuit brought

under the IDEA, ADA and Rehabilitation Act. In an unanimous

opinion, the Pace panel extended sovereign immuni ty to the

Louisiana defendants, reasoning that they could not have “knowingly

waived” their sovereign immunity prior to this court’s decision in

Reickenbacker v. Foster 2 in 2001. 3

If Pace does become precedent, this panel will have no wiggle

room: We will be bound by stare decisis

. With respect, however, I

am convinced that the Pace panel misapplied t he “knowing waiver”

test

—— actually, applied the wrong “waiver” test

—— and thus,

putting it candidly, wrongly decided Pace . I hope that our court4 Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 244 n.4 (1985).

10 will correct this wrong by rehearing Pace en banc. While

tentatively concurring with the panel majority’s decision in this

case —— per our obligation to follow decisions of prior panels ——

I must respectfully express my disagreement with the analysis

employed in Pace and, through it, in the instant case, and thus my

disagreement with the results reached in both.

The fundamental problem with t he reasoning of the panel

majority here

—— repeating the problematic reasoning first employed

in Pace —— is that it conflates the “knowing waiver” exception of

Fourteenth Amendmen t abrogation of sovereign immunity with the

“clearly and unambiguously stated/non-coercive” waiver exception

f or Spending Clause cases. Although both exceptions are

confusingly referred to in the case law as “waiver” doctrines, they

embody entirely different tests, the latter being less a true

waiver and more an acceptance of a c ondition precedent to

entitlement to the federal funds.

The relevant statute in both Pace and here

—— § 504 of the

Rehabilitation Act

—— was enacted in 1973. Originally, it

purported to waive state sovereign immunity pursuant to Congress’s

power to abrogate such immunity under § 5 of the Fourteenth

Amendment. 4 In 1985, though, the Supreme Court held that the

Rehabilitation Act neither abrogated state sovereign immunity under5 Id. at 247.

6 Even before the Supreme Court’s decision in Atascadero , the Spending Clause was

replacing the Fourteenth Amendment as the constitutional hook on which to hang Congress’s

waiver of state sovereign immunity in the Rehabilitation Act. See Atascadero , 473 U.S. at 244

n.4 (noting that Petitioners were defending the Rehabilitation Act’s waiver of state sovereign

immunity under Congress’s Spending Clause power, although Petitioners conceded that the

statute was originally enacted under Congress’s Fourteenth Amendment powers).

11 the Fourteenth Amendment nor waived state sovereign immunity under

the Spending Clause because it did not express “unequivocal

congre ssional intent” that, under this statute, states would be

susceptible to suit in federal court. 5 The following year,

Congress responded by amending and re-enacting the Rehabilitation

Act with 42 U.S.C. § 2000d-7 to include an express condition

precedent to a state’s waiver of sovereign immunity for any state

that accepts federal funds made available under Congress’s Spending

Clause power. In other words, Congress explicitly chose to reenact the Rehabilitation Act’s waiver of state sovereign immunity

under its Spending Clause power. 6

Thus, in analyzing whether the Louisiana defendants

relinquished their sovereign immunity under § 504 of the

Rehabilitation Act and § 2000d-7(a)(1) when they accepted federal

education money, th e panel in P ace should have applied the

condition precedent waiver exception of the Constitution’s Spending

Clause to state sovereign immunity. Instead, the P ace court

applied the “knowing waiver” exception —— wrongly, I respectfully7 527 U.S. 666 (1999).

8 Id. at 686-87 (noting that “Congress has no obligation to use its Spending Clause power

to disburse funds to the States; such funds are gifts”).

12 submit

—— which is specifically prescribed by the Supreme Court

only for federal “abrogation” statutes enacted by Congress pursuant

to § 5 of the Fourteenth Amendment. This distinction is critically

important, because employing the “waiver” test that is proper for

the Spendin g Clause leads inescapably to the conclusion that the

Louisiana defendants validly relinquished their right to claim

sovereign immunity by accepting federal funds. This result flows

from the crystal clear, express condition precedent in § 2000d7(a)(1) that by accepting the money, a State agrees to be subject

to, inter alia

, § 5 04 of the Rehabilitation Act and to suit in

federal court on claims arising under that statute —— even if the

Louisiana defendants might have believed mistakenly that they had

no immunity to waive.

Justice Scalia’s majority opinion for College Savings Bank 7

explains that the “knowing waiver” analysis applies only to federal

statutes enacted pursuant to § 5 of the Fourteenth Amendment; that,

in contrast, when a federal Spending Clause statute forthrightly

conditions a state’s acceptance of a congressional “gift” of funds

on the state’s relinquishment of sovereign immunity as an automatic

consequence of such acceptance, 8 a “fundamentally different” issue9 Id. at 686.

10 Cf. Grove City Coll. v. Bell , 465 U.S. 555, 575 (1984) (noting in Title IX case that

“Congress is free to attach reasonable and unambiguous conditions to federal financial assistance

that educational institutions are not obligated to accept”).

11 The Court explained that the government’s conditioning of federal highway funds on a

state’s setting its minimum drinking age at 21 years of age was not a “coercive” conditional grant

of federal funds. Id. at 686. See South Dakota v. Dole , 483 U.S. 203 (1987).

12 Id. at 687 (quoting South Dakota v. Dole , 483 U.S. 203, 211 (1987) (quoting Steward

Machine Co. v. Davis , 301 U.S. 548, 590 (1937))).

13 Id.

13 is presented. 9 In Spending Clause cases, the only limitation on

Congr ess’s power to impose an express c ondition precedent of

relinquishing sovereign immunity is tha t the statute thus

conditioning acceptance of funds not be “coercive.” As long as the

condition is not coercive, the relinquishment of sovereign immunity

is valid. 10 The Court emphasized in C ollege Savings Bank that this

is a significantly lower constitutional hurdle for a federal

statute than the one that must be cleared to establish “knowing

waiver” of sovereign immunity under § 5 of the F ourteenth

Amendment. 11

A s the C ollege Savings Bank Court explained, statutes that

impute waiver of sovereign immunity as an ipso facto consequence of

a state’s acceptance of federal monies would be “coercive” only at

the point “at which ‘pressure turns into compulsion,’” 12 such as by

requiring the state to refrain “from otherwise lawful activity.” 1314 For example, Congress’s Spending Clause power to condition a state’s receipt of federal

funds in the Medicaid program on a state’s waiver of its sovereign immunity to suits thereunder

has been recently affirmed by two circuit courts. See Westside Mothers v. Haveman , 289 F.3d

852 (6th Cir. 2002); Antrican v. Odom , 290 F.3d 178 (4th Cir. 2002).

15 See United States v. Lipscomb , 299 F.3d 303, 318-24 (5th Cir. 2002) (discussing

Congress’s power under the Spending Clause).

14 A state’s acceptance of Spending Clause money is inextricably

intertwined with any conditions clearly expressed and attached by

Congress, one of which can be and frequently is the relinquishment

of sovereign immunity. 14 This is consistent with our longstanding

recognition of Congress’s far -reaching power under its Spending

Clause prerogative to place conditions on financial “gifts” to the

states, which they are free to accept or reject by a ccepting or

rejecting the grant. 15

The upshot of this analysis is that when a Spending Clause

statute clearly imposes, as an automatic condition prec edent to

obtaining federal funds under such a statute, the recipient state’s

commitment not to invoke sovereign immunity, and a state accepts

the funds on that condition, it is wholly in appropriate for a court

to embark on the “knowing waiver” analysis announced by the Court

in College Savings Bank for determining whether Congress has

validly abrogated a state’s sovereign immunity under § 5 of the

Fourteenth Amendment. To do so is to turn a blind eye on the

universally recognized distinction between those statutes that

would abrogate a state’ s sovereign immunity under the Fourteenth16 Justice Scalia’s opinion for the Court in College Savings Bank goes so far as to criticize

Justice Breyer’s dissent for asserting that the distinction between these two separate waiver

doctrines “disappears” in some contexts, despite Justice Breyer’s acknowledging that there is an

“intuitive difference” between the two tests. College Savings Bank , 527 U.S. at 687.

17 Pace , 2003 WL 1455194, at *2-*4.

18 See Douglas v. Cal. Dep’t of Youth Auth. , 271 F.3d 812, 820

n.5 (9th Cir. 2001) (noting that College Savings Bank is

inappposite to those cases analyzing a waiver of sovereign

immunity conditioned on a grant of funds under Congress’s

Spending Clause power). See also College Savings Bank , 527 U.S.

at 686 (noting that Spending Clause “cases seem to us

fundamentally different from the present one” that involves

solely a question of a “knowing” waiver under the Fourteenth

Amendment) (emphasis added).

15 Amendment and those that elicit a state’s agreement not to assert

sovereign imm unity as a c ondition precedent of its acceptance of

federal funding offered by Congress under its Spending Clause

powers. 16 Yet, the panel opinion in P ace does ex actly this: It

applies the “knowing waiver” test from Col lege Savings Bank

immediately after it discusses Congress’s valid waiver, under the

Spending Clause, of state sovereign immunity in the Rehabilitation

Act. 17 This unwarranted judicial cross-over produces an erroneous

and impermissible confusing or conflating of two parallel but

“fundamentally different” lines of jurisprudence. 18

As the 1986 version of the statute at issue in both Pace and

this case

—— the Rehabilitation Act

—— was indisputably re-enacted

pursuant to Congress’s Spending Clause power, the only permissible

inquiry in these post-1986 cases is (1) whe ther the c ondition19 42 U.S.C. § 2000d-7(a)(1).

16

precedent is clearly and unambiguou sly expressed in the statute,

and (2) if it is thus clearly expressed, does this condition

“coerce” a waiver from the states in exchange for their obtaining

federal funds. As for the clear expression prong of the test, the

relevant statutory provision concerning § 504 of the Rehabilitation

Act and sovereign immunity states:

A State shall not be immune under the Eleventh Amendment

of the Constitution of the United States from suit in

Federal court for a violation of section 504 of the

Rehabilitation Act of 1973

. . . or of the provisions of

any other Federal statute prohibiting discrimination by

recipients of Federal financial assistance. 19

It cannot be questioned

—— at least not seriously

—— that this

statute explicitly predicates a state’s gaining access to federal

monies on that state’s commitment not to assert sovereign immunity

if suits are brought under § 504 of the Rehabilitation Act. This

condition applies to any state that accepts these funds, regardless

of whether the state “believes” that it does or does not have any

immunity to the Rehabilitation Act to relinquish. More important,

when the Louisiana defendants took the money, the Supreme Court had

already blessed the Rehabilitation Act as the paragon of drafting

by Congress of a proper waiver under its Spending Clause power. In

Lane v. Pena

, the Court ruled that the current, 1986 version of the

Rehabilitation Act

was enacted in response to our decision in A tascad ero20 Lane v. Pena , 518 U.S. 187, 200 (1996) (emphasis added).

21 Id.

17 State Hospital v. Scanlon

, 473 U.S. 234, 105 S. Ct. 3142,

87 L. Ed. 2d 171 (1985), where we held that Congress had

not unmistakably expressed its intent to abrogate the

States’ Eleventh Amendment immunity in the Rehabilitation

Act, and that the States accordingly were not “subject to

suit in federal cour t by litigants seeking retroactive

monetary relief under § 504.” Id. at 235, 105 S. Ct. at

3143-3144. By enacting [42 U.S.C. § 2000d-7], Congress

sought to provide the sort of unequivocal waiver that our

precedents demand

. 20

In fact, the Supreme Court went so far as to praise “the care with

which Congress responded to our decision in Atascadero by crafting

an unambiguous waiver of the States’ Eleventh Amendment immunity”

in the amended and re-enacted Rehabilitation Act. 21 No room is left

for doubt, particularly after the Lane Court’s ruling in 1996, that

the express terms of the Rehabilitati on Act clearly and

unambiguously create a valid, ipso facto waiver of state sovereign

immunity under Con gress’s Spending Clause power as a c ondition

precedent to accepting the offered funds

—— a condition that ripens

into irrevocability on acceptance of the funds.

As for the coercion prong of the test for conditions imposed

in Spending Clause statutes, there is not even a whiff of duress in

the conditional grant language in the Rehabilitation Act. Indeed,

it is far less controlling of a state’s behavior than the minimumage drinking laws that were imposed on the states through

Congress’s exercise of its Spend ing Clause power, and which were22 483 U.S. at 206.

23 Litman v. George Mason Univ. , 186 F.3d 544, 554 (4th Cir. 1999)

.

24 See Koslow v. Pennsylvania , 302 F.3d 161, 171 (3d Cir. 2002) (holding that the

Rehabilitation Act contains an “ordinary quid pro quo that the Supreme Court has repeatedly

approved”); Nihiser v. Ohio Envtl. Prot. Agency , 269 F.3d 626, 628 (6th Cir. 2001) (holding that

“a plaintiff may sue a State under Section 504 of the Rehabilitation Act” because § 2000d-7 is “a

valid and unambiguous waiver”); Jim C. v. United States , 235 F.3d 1079, 1082 (8th Cir. 2000)

(en banc) (holding that the statute’s clear language provided for a valid waiver of state sovereign

immunit y) ; Stanley v. Litscher , 213 F.3d 340, 344 (7th Cir. 2000) (noting that “the Rehabilitation

18 specifi cally approved by the Supreme Court in S outh Dakota v.

Dole

. 22 As the Fourth Circuit recently held in adjudicating a Title

IX case under the same waiver statute that applies to the

Rehabilitation Act:

[A]ny state reading § 2000d-7(a)...would clearly understand

the following consequences of accepting Title IX funding: (1)

the state must comp l y with Title IX’s antidiscrimination

provisions, and (2) it consents to resolve disputes regarding

alleged violations of those provisions in federal court. 23

There was simply no leg al or factual justification for

applying the Fourteenth Amendment’s “knowing waiver” test in Pace

and none exists in this case; indeed, to do so is error as a matter

o f law. Rather, the o nly proper inquiry in either case is

straightforward: Is the Rehabilitation Act’s clearly stated

condition that a state not assert sovereign immunity coercive? It

obviously is not. As previously noted by six of our fellow

circuits, the statute is clear; it contains an express condition

under Con gress’s Spending Clause power f or waiver of state

sovereign immunity, and there is nothing coercive about it. 24Act is enforceable in federal court against recipients of federal largess”); Sandoval v. Hagan , 197

F.3d 484. 493 (11th Cir. 1999) (holding that the terms of the Rehabilitation Act provide for a

“clear” waiver of state sovereign immunity under the Spending Clause), rev’d on other grounds

, Alexander v. Sandoval , 531 U.S. 1049 (11th Cir. 2000); Clark v. California , 123 F.3d 1267, 1271

(9th Cir. 1997) (holding that “the Rehabilitation Act manifests a

clear intent to condition a state's participation on its consent

to waive its Eleventh Amendment immunity”).

19 Even more t o the point, it matters not one iota that the

Louisiana def endants now say, self-servingly, that they b elieved

they had no immunity to waive, and thus cannot be held to the

statute’s condition precedent of waiver. That is wholly illogical

and irrelevant: The only material point is that when these

defendant s took the money, they had no expectation of immunity,

regardless of whether this absence of expectation re sulted from

their own mistake of law (never an excuse ) or from a correct

reading of the applicable federal legislation. In buying into the

Louisiana defendants’s groundless mistake of law defense, the panel

opinion in Pace relies on a Second Circuit opinion that also

impermissibly crosses jurisprudential lines in applying the

Fourteenth Amendment’s “knowing waiver” test to the Rehabilitation

Act’s co ndition precedent waiver, which was enacted under

Congress’s Spending Clause power. Thus, P ace would put this court

on the side of the Second Circuit i n the circuit split that it

created with the s ix other circuits that have analyzed th e

Rehabilitation Act properly as providing a waiv er of state

sovereign immunity under Congress’s Spending Clause power25 Compare supra note 24 (listing six circuit opinions analyzing the Rehabilitation Act and

§ 2000d-7 under the proper Spending Clause test) and note 18 (identifying another Ninth Circuit

case that explicitly makes the same point as here) with Garcia v. S.U.N.Y. Health Sciences Ctr.

, 280 F.3d 98 (2d Cir. 2001).

20 simpliciter

. 25

Either way, though, the Louisiana defendants made a conscious

—— “kn owing” —— choice (1) to accept the federal funds a nd

, (2)

vis-à-vis those funds

, to be subject to the Rehabilitation Act and

to a lawsui t in federal court on Rehabilitation Act claims. The

Louisiana defendants’s accept ance of the funds pursuant to the

clear wording of the statute triggered the Rehabilit ation Act’s

waiver of state sovereign immunity. Thus, they cannot now assert

—— nor at any time after the 1986 enactment of § 2000d-7 could they

ever have asserted

—— sovereign immunity against Rehabilitation Act

claims.

For these reasons, I specially concur in the decision of the

panel majority if

, in the final analysis, P ace should become

binding precedent; otherwise, I respectfully dissent. Either way,

though, I remain in fundamental disagreement with the reasoning and

testing methodology of the panel opinion in Pace and thus with the

panel majority’s opinion here based on Pace

. If, however, a

majority of the judge s in active service on this court agree to

rehear Pace en banc, and the en banc court then decides Pace as I

advocate in this opinion, the instant case will be returned to this21

panel for correction. Otherwise, it shall be up to the Supreme

Court to righ t the wrong that I perceive in P ace and thus in the

panel majority’s reliance on it here.