If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

KENNETH MCKENZIE,

Plaintiff-Appellee,

FOR PUBLICATION

May 7, 2020

9:00 a.m.

v No. 347061

Wayne Circuit Court

DEPARTMENT OF CORRECTIONS, STATE OF 

MICHIGAN, and MACOMB CORRECTIONAL 

FACILITY WARDEN,

LC No. 18-002451-CD

Defendants-Appellants,

and

RANDALL HAAS,

Defendant.

FATIMA OLDEN,

Plaintiff-Appellee,

v No. 347798

Wayne Circuit Court

DEPARTMENT OF CORRECTIONS, STATE OF 

MICHIGAN, and MACOMB CORRECTIONAL 

FACILITY WARDEN,

LC No. 18-001424-CD

Defendants-Appellants.

Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.
-2-

In Docket No. 347061, defendants appeal as of right the trial court’s denial of their motion 

for summary disposition premised upon MCR 2.116(C)(4). In Docket No. 347798, which this 

Court consolidated with Docket No. 347061, defendants appeal by leave granted the trial court’s 

order denying their motion for summary disposition, also brought pursuant to MCR 2.116(C)(4). 

Olden v Department of Corrections, unpublished order of the Court of Appeals entered April 23, 

2019 (Docket No. 347798). We affirm in both cases.

I. FACTS

The facts in both cases are similar and largely undisputed. Plaintiffs, Kenneth McKenzie 

and Fatima Olden, (“plaintiffs”) are long-term employees of the Michigan Department of 

Corrections (MDOC) as corrections officers at the Macomb Correctional Facility (“the Facility”). 

In 2015, the Facility began a program where inmates trained dogs to become leader dogs for the 

blind. The program only took place in certain housing units in the facility. Plaintiffs were both 

assigned to one of those housing units and thus frequently had to come into contact with dogs. 

Plaintiffs alleged that they were allergic to dogs and would suffer allergic symptoms whenever 

they came into close contact with the dogs. Plaintiffs alleged that they informed their supervisors

of the allergic reactions and then filed “Disability Accommodation Request and Medical 

Statements” with the MDOC, requesting that they be placed away from housing units that had 

dogs. 

While the Facility warden allowed plaintiffs to briefly move to different housing units, 

plaintiffs were ultimately returned to the prior housing units with dogs. The MDOC denied 

plaintiffs’ requests for accommodation and the Facility warden also refused to accommodate their 

claimed allergies by moving them to any other housing units or positions. Plaintiffs thus each filed 

a charge of disability discrimination with the Equal Employment Opportunity Commission 

(EEOC), after which they were allegedly subjected to retaliatory acts at the Facility. The EEOC 

found probable cause that the MDOC was in violation of the Americans with Disabilities Act 

(ADA) and proposed conciliation agreements between the MDOC and plaintiffs, but the MDOC 

refused the terms and plaintiffs’ charges were transferred to the Department of Justice (DOJ). The 

DOJ determined that it would not pursue charges on behalf of either plaintiff and plaintiffs 

thereafter filed complaints against the Facility warden, the MDOC, and the state of Michigan. In 

their complaints, plaintiffs alleged violations of the Michigan Persons with Disabilities Civil 

Rights Act, MCL 37.1101 et seq., retaliation in violation of the same Act, violation of Title I of 

the ADA, 42 USC § 12101, et seq., by the defendant warden, and violation of section 504 of the 

Rehabilitation Act, 29 USC § 794, et seq., by the state and the MDOC.

Defendants moved for summary disposition of plaintiffs’ claims for violation of Title I of 

the ADA and violation of the Rehabilitation Act, asserting that plaintiffs’ claims of violation of 

the ADA and violation of the Rehabilitation Act arise under federal law and remedies for those 

claims may be available in the federal courts. Defendants claimed that no Michigan statute 

provides the circuit court with jurisdiction over claims arising from the ADA or Rehabilitation Act

and that, lacking statutory authority and because the courts lacked jurisdiction for any claim against 

the state for which there is a remedy available in federal courts, the circuit courts lacked subject 

matter jurisdiction over plaintiffs’ federal claims. The trial courts denied the motions, opining that 

they had subject matter jurisdiction to hear those claims under the Michigan Constitution and the 

Revised Judicature Act. These appeals followed.
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II. LAW GOVERNING JURISDICTION

On appeal, defendants assert that because the state retains sovereign immunity from suit in 

its own courts, waiver of that immunity can be achieved only through the Legislature’s consent. 

They contend that while the Legislature has consented to the state being sued for certain things in 

the Court of Claims under the Court of Claims Act, it has not authorized the state to be sued in the 

Court of Claims or any other state court for federal Title I ADA or Rehabilitation Act claims. 

Defendants acknowledge that while states courts generally have concurrent jurisdiction with 

federal courts over federal claims, Michigan is without a court of competent jurisdiction to hear 

ADA and Rehabilitation Act claims. According to defendants, the trial court therefore lacked 

subject-matter jurisdiction over plaintiffs’ federal claims and that summary disposition should thus 

have been granted in their favor with respect to plaintiffs’ ADA and Rehabilitation Act claims. 

We disagree.

This Court reviews a motion for summary disposition brought pursuant to MCR 

2.116(C)(4) de novo. Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 155; 756 

NW2d 483 (2008). A motion pursuant to MCR 2.116(C)(4) tests the trial court's subject-matter 

jurisdiction. Braun v Ann Arbor Charter Tp, 262 Mich App 154, 157; 683 NW2d 755 (2004). 

“When viewing a motion under MCR 2.116(C)(4), this Court must determine whether the 

pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether 

the affidavits and other proofs show that there was no genuine issue of material fact.” Weishuhn, 

279 Mich App at 155 (citation omitted). We review whether a trial court has subject-matter 

jurisdiction de novo as a question of law. Bank v Michigan Ed Ass'n-NEA, 315 Mich App 496, 

499; 892 NW2d 1 (2016). This Court also reviews de novo “questions of statutory construction, 

with the fundamental goal of giving effect to the intent of the Legislature.” Cheboygan Sportsman 

Club v Cheboygan Co Prosecuting Attorney, 307 Mich App 71, 75; 858 NW2d 751 (2014).

The singular issue for our resolution is whether the circuit courts had subject-matter 

jurisdiction over plaintiffs’ ADA and Rehabilitation Act claims. “Subject-matter jurisdiction 

refers to a court’s power to act and authority to hear and determine a case.” Forest Hills Cooperative v Ann Arbor, 305 Mich App 572, 617; 854 NW2d 172 (2014). Michigan’s circuit courts 

are courts of general jurisdiction and derive their power from the Michigan Constitution. Okrie v 

Michigan, 306 Mich App 445, 467; 857 NW2d 254 (2014). Specifically, Const. 1963, art. 6, § 13 

provides:

The circuit court shall have original jurisdiction in all matters not prohibited by law; 

appellate jurisdiction from all inferior courts and tribunals except as otherwise 

provided by law; power to issue, hear and determine prerogative and remedial writs; 

supervisory and general control over inferior courts and tribunals within their 

respective jurisdictions in accordance with rules of the supreme court; and 

jurisdiction of other cases and matters as provided by rules of the supreme court.

The Revised Judicature Act (RJA) also provides that:

circuit courts have original jurisdiction to hear and determine all civil claims and 

remedies, except where exclusive jurisdiction is given in the constitution or by 
-4-

statute to some other court or where the circuit courts are denied jurisdiction by the 

constitution or statutes of this state. [MCL 600.605]

Thus, a circuit court is presumed to have subject-matter jurisdiction over a civil action unless (1) 

Michigan’s Constitution or a statute expressly prohibits it from exercising jurisdiction or, (2) 

Michigan’s Constitution or a statute gives to another court exclusive jurisdiction over the subject 

matter of the suit. Prime Time Intl Distrib, Inc v Dept of Treasury, 322 Mich App 46, 52; 910 

NW2d 683 (2017). “ ‘[W]here this Court must examine certain statutory language to determine 

whether the Legislature intended to deprive the circuit court of jurisdiction,’ this Court has 

explained, ‘[t]he language must leave no doubt that the Legislature intended to deprive the circuit

court of jurisdiction of a particular subject matter.’ ” Id., citation omitted. 

There is no dispute that claims of ADA and Rehabilitation Act violations arise under 

federal law. With respect to claims sounding in federal law our Supreme Court has provided 

guidance concerning the circuit courts’ subject-matter jurisdiction:

It has long been established that, so long as Congress has not provided for exclusive 

federal-court jurisdiction, state courts may exercise subject-matter jurisdiction over

federal-law claims whenever, by their own constitution, they are competent to take 

it. State courts possess sovereignty concurrent with that of the federal government, 

subject only to limitations imposed by the Supremacy Clause. Thus, state courts are 

presumptively competent to assume jurisdiction over a cause of action arising under 

federal law. If concurrent jurisdiction otherwise exists, subject-matter jurisdiction

over a federal-law claim is governed by state law.

In determining whether our state courts enjoy concurrent jurisdiction over a claim 

brought under federal law, it is necessary to determine whether Congress intended 

to limit jurisdiction to the federal courts.

In considering the propriety of state-court jurisdiction over any particular federal

claim, the Court begins with the presumption that state courts enjoy concurrent

jurisdiction. Congress, however, may confine jurisdiction to the federal courts 

either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can 

be rebutted by an explicit statutory directive, by unmistakable implication from 

legislative history, or by a clear incompatibility between state-court jurisdiction and 

federal interests. [Office Planning Group, Inc v Baraga-Houghton-Keweenaw 

Child Dev Bd, 472 Mich 479, 493-494; 697 NW2d 871 (2005), quotation marks 

and citations omitted]

Our inquiry, then, is first “whether Congress intended to limit to federal courts exclusive 

jurisdiction over such a dispute” and, second, “if not, whether state law allows our courts to 

exercise subject-matter jurisdiction over the action.” Id. at 494.

III. ADA CLAIMS

According to our Supreme Court, federal ADA claims could properly be brought in state 

courts because state courts enjoy concurrent jurisdiction over such claims. Peden v City of Detroit, 
-5-

470 Mich 195, 201 n. 4; 680 NW2d 857 (2004), quoting Gulf Offshore Co v Mobil Oil Corp,453 

US 473, 478; 101 S Ct 2870; 69 L Ed 2d 784 (1981). Peden noted the same considerations set 

forth in Office Planning Group, Inc, 472 Mich at 493-494. Peden also noted that the ADA, at 42 

USC § 12202 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 this chapter. In any action against a State for a violation of the 

requirements of this chapter, remedies (including remedies both at law and in 

equity) are available for such a violation to the same extent as such remedies are 

available for such a violation in an action against any public or private entity other 

than a State.

By providing that a state is not immune from an action “in Federal or State court of competent 

jurisdiction . . . .” Congress has expressly acknowledged that actions against the state for violation 

of the ADA could lie in state courts. 

However, in Bd of Trustees of Univ of Alabama v Garrett, 531 US 356, 364; 121 S Ct 955, 

962; 148 L Ed 2d 866 (2001), the United States Supreme Court was called upon to determine 

whether, in enacting 42 USC § 12202, “Congress acted within its constitutional authority by 

subjecting the States to suits in federal court for money damages under the ADA.” The Supreme 

Court held that it did not and that “to uphold the [ADA’s] application to the States would allow 

Congress to rewrite the Fourteenth Amendment law laid down by this Court . . . .” Id. at 374. The 

Supreme Court also acknowledged that:

Our holding here that Congress did not validly abrogate the States' sovereign 

immunity from suit by private individuals for money damages under Title I does 

not mean that persons with disabilities have no federal recourse against 

discrimination. Title I of the ADA still prescribes standards applicable to the States. 

Those standards can be enforced by the United States in actions for money 

damages, as well as by private individuals in actions for injunctive relief under Ex 

parte Young, 209 US 123; 28 S Ct 441, 52 L Ed 714 (1908). In addition, state laws 

protecting the rights of persons with disabilities in employment and other aspects 

of life provide independent avenues of redress. [Id. at 374 n. 9]

Thus, while the Supreme Court determined that states’ sovereign immunity from suit could not be 

abrogated by 42 USC 12202, suits by private individuals for injunctive relief against individual 

state officials in their official capacities could still be pursued in state courts. See, Ex parte Young,

209 US 123; 28 S Ct 441; 52 L Ed 714 (1908). And, Bd of Trustees of Univ of Alabama held only 

that states’ sovereign immunity from suit for money damages could not be abrogated by 42 USC 

§ 12202. Thus, 42 USC § 12202’s abrogation of sovereign immunity with respect to injunctive 

claims brought against state officials in their official capacities under the ADA is still sound. 

Applying the test set forth in Office Planning Group, Inc, 472 Mich at 494, we find that

Congress did not intend to give federal courts exclusive jurisdiction over plaintiffs’ ADA claims

which were brought against the warden, a state official, in his official capacity under the ADA and 
-6-

which seek declaratory and injunctive relief. Such claims are pursuable in state courts according 

to Bd of Trustees of Univ of Alabama, 531 US at 374 n. 9. Moreover, there is no explicit or implicit 

indication that Congress affirmatively divested state courts of their presumptively concurrent 

jurisdiction over such claims. Our next inquiry, then, under Office Planning Group, Inc, 472 Mich 

at 494 is whether state law allows our courts to exercise subject-matter jurisdiction over plaintiffs’ 

ADA claims.

As previously indicated, Const. 1963, art. 6, § 13 provides that circuit courts “have original 

jurisdiction in all matters not prohibited by law.” Defendants argue, however, that pursuant to 

Greenfield Const Co Inc v Michigan Dept of State Highways, 402 Mich 172, 193; 261 NW2d 718 

(1978), is has long been recognized that a state cannot be sued without its consent granted through 

a legislative enactment and, that because neither the Court of Claims or the circuit court is 

statutorily granted the jurisdiction to hear and decide federal claims against the state or its’ actors, 

the ADA and Rehabilitation Act claims must be dismissed for lack of subject-matter jurisdiction. 

Indeed, Michigan courts have long recognized that the state, as sovereign, is immune from suit 

save as it consents to be sued, because the state created the courts and thus is not subject to them; 

any relinquishment of sovereign immunity must be strictly interpreted in favor of the sovereign. 

Co Rd Ass'n of Michigan v Governor, 287 Mich App 95, 118; 782 NW2d 784 (2010). “Essentially, 

the state can only waive its immunity and, consequently, consent to be sued through an act of the 

Legislature or through the constitution.” Id. at 119. 

Relevant to the instant matter, the state has waived its immunity and subjected itself to the 

authority of courts via the Court of Claims Act, MCL 600.6401, et seq. The Court of Claims Act 

thus serves as one exception to the general jurisdiction of circuit courts when it is given exclusive 

jurisdiction.1 The act provides, in relevant part, at MCL 600.6419(1):

Except as provided in sections 6421 and 6440, the jurisdiction of the court of 

claims, as conferred upon it by this chapter, is exclusive. . . . Except as otherwise 

provided in this section, the court has the following power and jurisdiction:

(a) To hear and determine any claim or demand, statutory or constitutional, 

liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, 

equitable, or declaratory relief or any demand for an extraordinary writ against the 

state or any of its d0epartments or officers notwithstanding another law that confers 

jurisdiction of the case in the circuit court.

Notably, MCL 600.6419(1)(a) vests the Court of Claims with exclusive jurisdiction to 

“hear and determine any claim or demand . . . against the state or any of its departments or officers.” 

Employing the word “any” in this phrase according to its plain and ordinary meaning (see, e.g., 

People v Kloosterman, 296 Mich App 636, 639; 823 NW2d 134 (2012), “any” signifies “every” 

and is used to indicate no restriction. See, Merriam-Webster’s Collegiate Dictionary (11th ed.). 

 

1 Because the jurisdiction of the Court of Claims is not constitutionally created, but is instead 

constitutionally permitted and derives its power from the Legislature in Michigan statutory law, 

the Court of Claims does not have extensive and inherent powers akin to those of a constitutional 

court of general jurisdiction. Okrie, 306 Mich App at 456; Prime Time Intl Distrib, 322 Mich App 

at 53, quotation marks omitted.
-7-

MCL 600.6419(1)(a) further provides that the exclusive jurisdiction applies “notwithstanding 

another law that confers jurisdiction of the case in the circuit court.” The word “notwithstanding” 

is defined as “despite; in spite of.” Black’s Law Dictionary, 11th ed. Thus, strictly construing the 

plain language in the statute relinquishing sovereign immunity from suit (Greenfield Const Co Inc, 

402 Mich at 197), the exclusive jurisdiction of the Court of Claims applies to every claim against 

the state, its departments, and its officers, despite any other law that confers jurisdiction of the case 

to the circuit court. 

However, we cannot ignore that prior to setting forth the above, the Court of Claims Act, 

at MCL 600.6419, begins by stating “Except as provided in sections 6421 and 6440, the 

jurisdiction of the court of claims . . . is exclusive.” Thus, at the outset, the Court of Claims Act 

sets forth two exceptions to the statement which provides it with exclusive jurisdiction over actions 

against the state, its departments and officers: MCL 600.6421 and MCL 600.6440. 

MCL 600.6421 provides, in relevant part:

(1) Nothing in this chapter eliminates or creates any right a party may have 

to a trial by jury, including any right that existed before November 12, 2013. 

Nothing in this chapter deprives the circuit, district, or probate court of jurisdiction 

to hear and determine a claim for which there is a right to a trial by jury as otherwise 

provided by law, including a claim against an individual employee of this state for 

which there is a right to a trial by jury as otherwise provided by law. Except as 

otherwise provided in this section, if a party has the right to a trial by jury and 

asserts that right as required by law, the claim may be heard and determined by a 

circuit, district, or probate court in the appropriate venue.

(2) For declaratory or equitable relief or a demand for extraordinary writ sought by 

a party within the jurisdiction of the court of claims described in section 6419(1) 

and arising out of the same transaction or series of transactions with a matter 

asserted for which a party has the right to a trial by jury under subsection (1), unless 

joined as provided in subsection (3), the court of claims shall retain exclusive 

jurisdiction over the matter of declaratory or equitable relief or a demand for 

extraordinary writ until a final judgment has been entered, and the matter asserted 

for which a party has the right to a trial by jury under subsection (1) shall be stayed 

until final judgment on the matter of declaratory or equitable relief or a demand for 

extraordinary writ.

Thus, the first exception dictates that the Court of Claims has jurisdiction over claims brought 

against the state, its departments, or its officers except where a party has the right to a trial by jury 

and asserts that right as required by law. In that case, “the claim may be heard and determined by 

a circuit, district, or probate court in the appropriate venue.” MCL 600.6421(1).

Plaintiffs’ ADA claims are brought under Title 1. Title 1 is provided for in subchapter 1 of 

the ADA, at 42 USC § 12112 as follows: 

(a) General rule
-8-

No covered entity shall discriminate against a qualified individual on the basis of 

disability in regard to job application procedures, the hiring, advancement, or 

discharge of employees, employee compensation, job training, and other terms, 

conditions, and privileges of employment.

(b) Construction

As used in subsection (a), the term “discriminate against a qualified individual on 

the basis of disability” includes--

(1) limiting, segregating, or classifying a job applicant or employee in a way that 

adversely affects the opportunities or status of such applicant or employee because 

of the disability of such applicant or employee;

***

(3) utilizing standards, criteria, or methods of administration--

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to common 

administrative control;

(4) excluding or otherwise denying equal jobs or benefits to a qualified individual 

because of the known disability of an individual with whom the qualified individual 

is known to have a relationship or association;

(5)(A) not making reasonable accommodations to the known physical or mental 

limitations of an otherwise qualified individual with a disability who is an applicant 

or employee, unless such covered entity can demonstrate that the accommodation 

would impose an undue hardship on the operation of the business of such covered 

entity; or

(B) denying employment opportunities to a job applicant or employee who is an 

otherwise qualified individual with a disability, if such denial is based on the need 

of such covered entity to make reasonable accommodation to the physical or mental

impairments of the employee or applicant . . . .

This subchapter, like all of the subchapters in the ADA, contains its own remedies and enforcement 

provisions. 42 USC § 12117, setting forth the “powers, remedies and procedures” applicable to 

Title I states:

(a) The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 

2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and 

procedures this subchapter provides to the Commission, to the Attorney General, 

or to any person alleging discrimination on the basis of disability in violation of 

any provision of this chapter, or regulations promulgated under section 12116 of 

this title, concerning employment.
-9-

Plaintiffs do not claim that any referenced section in the above provides a right to a jury trial for a 

claim of violation of Title 1 of the ADA where injunctive and declaratory relief is requested. 

Plaintiffs also fail to direct this Court to any authority suggesting a right to a jury trial in these 

circumstances. Thus, unless the second exception set forth in the Court of Claims Act at MCL 

600.6419 applies, their ADA claims would be subject to the exclusive jurisdiction of the Court of 

Claims. 

MCL 600.6440, states: 

No claimant may be permitted to file claim in said court against the state nor any 

department, commission, board, institution, arm or agency thereof who has an 

adequate remedy upon his claim in the federal courts, but it is not necessary in the 

complaint filed to allege that claimant has no such adequate remedy, but that fact 

may be put in issue by the answer or motion filed by the state or the department, 

commission, board, institution, arm or agency thereof.

A review of the plain statutory language requires an interpretation that if a claimant has an adequate 

remedy upon his claims in the federal court, he cannot file the claim in the Court of Claims. All 

parties essentially agree that the above interpretation is correct. However, defendants contend that 

the statute also necessarily dictates that if a claimant has an adequate remedy in the federal court 

he must file the claim in the federal court, whereas plaintiffs contend that the circuit court’s 

concurrent jurisdiction applies. We agree with plaintiffs. 

While MCL 600.6440 precludes the filing of a claim in the Court of Claims if an adequate 

remedy in the federal courts exist, it does not explicitly preclude the concurrent jurisdiction of the 

circuit courts over such claims. Significantly, the statute provides that “[n]o claimant may be 

permitted to file claim in said court . . .” (emphasis added). “Said” is defined as “aforementioned.” 

Merriam-Webster’s Collegiate Dictionary (11th ed.). Because the Court of Claims Act governs the 

Court of Claims, the aforementioned and thus “said” court referred to in MCL 600.6440 is the 

Court of Claims. As a result, MCL 600.6440 directs only that if an adequate remedy is available 

in the federal courts, the claims cannot be filed, specifically, in the Court of Claims. Defendants 

more expansive reading of this statute to then require that such actions are limited to the federal 

courts is incorrect. Divesting the Court of Claims of jurisdiction does not divest the circuit court 

of any jurisdiction it may already have. And, our Supreme Court has directed that state courts are 

presumed to have concurrent jurisdiction with federal courts over federal claims, with that 

presumption being rebutted only when “Congress intended to limit jurisdiction to the federal 

courts.” Office Planning Group, Inc, 472 Mich at 493 (emphasis added). “Congress . . . may 

confine jurisdiction to the federal courts either explicitly or implicitly” through “explicit statutory 

directive, by unmistakable implication from legislative history, or by a clear incompatibility 

between state-court jurisdiction and federal interests.” Office Planning Group, Inc, 472 Mich at 

493-494 (emphasis added). There has been no contention or showing that Congress intended to 

limit jurisdiction over the specific type of ADA claims asserted by plaintiffs to the federal courts. 

Thus, the presumption of concurrent jurisdiction over such claims stands, and plaintiffs’ Title 1 

ADA claims against the state officer warden in his official capacity and seeking injunctive and 

declaratory relief may be heard in the circuit court. As a result, the trial courts properly denied 

defendants’ motions for summary disposition premised upon lack of subject-matter jurisdiction

over plaintiffs’ ADA claims.
-10-

IV. REHABILITATION ACT CLAIMS

Defendants contend that the trial courts erred in denying their motions for summary 

disposition concerning plaintiffs’ claims of violations of § 504 the Rehabilitation Act, 29 USC § 

794. Defendants, however, dedicate very little argument to plaintiffs’ Rehabilitation Act claims. 

Assuming that defendants intend the same arguments concerning sovereign immunity to apply to 

plaintiffs’ Rehabilitation Act claims, we note that the Supreme Court has directed that Congress 

may, in the exercise of its spending power, condition its grant of funds to the states upon their 

taking certain actions that Congress could not require them to take, and require that the acceptance 

of these funds be conditioned upon a constructive waiver of its sovereign immunity. Coll Sav 

Bank v Florida Prepaid Postsecondary Ed Expense Bd, 527 US 666, 686; 119 S Ct 2219; 144 L 

Ed 2d 605 (1999). Consistent with this holding and relevant to the instant matter, 42 USC § 2000d7 states:

(a) General provision

(1) 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, title IX of the Education Amendments of 1972, the Age 

Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the 

provisions of any other Federal statute prohibiting discrimination by recipients of 

Federal financial assistance.

Thus, Congress has clearly and explicitly directed that a state does not enjoy sovereign immunity 

from suits for violation of section 504 of the Rehabilitation Act—claims that were asserted by 

plaintiffs. 

We note that 42 USC § 2000d-7 states that states are not immune from “a suit in Federal 

court” for a violation of section 504 of the Rehabilitation Act. This may, at first blush, lead to a 

conclusion that claims alleging violations of that section of the Rehabilitation Act must be brought 

in a federal court. But, 

the States possess sovereignty concurrent with that of the Federal Government, 

subject only to limitations imposed by the Supremacy Clause. Under this system of 

dual sovereignty, we have consistently held that state courts have inherent 

authority, and are thus presumptively competent, to adjudicate claims arising under 

the laws of the United States. [Burt v Titlow, 571 US 12, 19; 134 S Ct 10; 187 L 

Ed 2d 348 (2013)]

Moreover, in cases “arising under federal law” “there is a deeply rooted presumption in favor of 

concurrent state court jurisdiction, rebuttable if Congress affirmatively ousts the state courts of 

jurisdiction over a particular federal claim.” Mims v Arrow Fin Services, LLC, 565 US 368, 378; 

132 S Ct 740; 181 L Ed 2d 881 (2012) (internal quotation marks and citation omitted). And, “the 

grant of jurisdiction to one court does not, of itself, imply that the jurisdiction is to be exclusive.”

Id. at 380, quoting United States v Bank of New York & Trust Co, 296 US 463, 479; 56 S Ct 343;

80 L Ed 331 (1936).
-11-

In Mims, the Supreme Court noted that the Telephone Consumer Protection Act, 47 USC 

§ 227, permits a private person to seek redress for violations of the act or regulations “in an 

appropriate court of [a] State,” “if [such an action is] otherwise permitted by the laws or rules of 

court of [that] State.” Id. at 380, quoting 47 USC § 227(b)(3). The Mims Court determined that 

while the statute at issue provided state courts with jurisdiction, it did not do so exclusively through 

use of the word “only” or “exclusively” before “State court” in the statute. Id. Thus, the Mims

Court opined that the original jurisdiction of federal courts over federal questions, set forth in 28 

USC § 1331, still applied and that the state forum mentioned in 47 USC § 227(b)(3) was optional, 

but not mandatory. Id. at 381.

The same holds true here. Had Congress intended that plaintiffs’ specific Rehabilitation 

Act claims be brought exclusively in the federal court, it was well aware how to do so. For 

example, 47 USC § 227(g)(2) (Supp 2011) provides “exclusive jurisdiction over [such] actions” 

in “[t]he district courts of the United States.” See, Mims, 565 US at 380. And, “[s]ection 

227(g)(2)'s exclusivity prescription reinforce[s] the conclusion that [47 USC § 227(b) (3)'s] silence 

. . . leaves the jurisdictional grant of § 1331 untouched. Id. at 380-381. 

Here, 42 USC § 2000d-7 explicitly states that states are not immune from “a suit in Federal 

court” for a violation of section 504 of the Rehabilitation Act. That provision leaves intact the 

original jurisdiction of federal courts over federal questions set forth in 28 USC § 1331. When 

read in conjunction with the exception set forth in the Court of Claims Act at MCL 600.6440

(directing that no claim may be filed against the state, its departments, or employees in the Court 

of Claims when an adequate remedy upon his claim exists in the federal courts), the presumption 

of concurrent jurisdiction with the circuit courts is also left intact. And, since “state courts have 

inherent authority, and are thus presumptively competent, to adjudicate claims arising under the 

laws of the United States” Burt, 571 US at 19, the circuit court’s concurrent jurisdiction applies. 

The circuit courts thus did not err in denying defendants’ motions for summary disposition of 

plaintiffs’ Rehabilitation Act claims based on lack of subject-matter jurisdiction.

Affirmed.

/s/ Mark J. Cavanagh 

/s/ Deborah A. Servitto 

Stephens, P.J., did not participate because of her assignment to the Michigan Court of 

Claims.