United States Court of Appeals

Fifth Circuit



## FILED

August 25, 2005

Charles R. Fulbruge III

Clerk 

## In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 02-11168

Summary Calendar

_______________



### J ULIE 

### D UNLOP 

### E SPINOZA



### ,

Plaintiff-Appellee,

VERSUS



### T EXAS 

### D EPARTMENT OF 

### P UBLIC 

### S AFETY 

### ; ET 

### A L



### .,

Defendants,



### T EXAS 

### D EPARTMENT OF 

### P UBLIC 

### S AFETY



### ,

Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Northern District of Texas



### m 3:00-CV-1975-L

_________________________2

Before D AVIS , S MITH

, and D ENNIS

, Circuit Judges.

P ER C URIAM : *

Julie Espinoza sued the Texas Department

of Public Safety (“TDPS”) for all eged violations of title II of the Americans with Disabilit ies Act (“ADA”), 42 U.S.C. § 12132, and

§ 504 of the Reha bilitation Act of 1973, 29

U.S.C. § 794(a). Based on intervening decisions from the Supreme Court and this court, 1

Espinoza conceded that her ADA clai m was

barred by sovereign immunit y 2 but maintained

that her § 504 Rehabilitation Act claim for injunctive relief was not.

TDPS moved the district court to dismiss

the § 504 claim on the basis of state sovereign

immunit y. Concluding that TDPS had waived its immunity from suit under § 504 of the Rehabilitation Act by accepting federal funds pursuant to 42 U.S.C. 2000d-7, the district court

denied the motion to dismiss, and TDPS took

this interlocutory appeal.

During the pendency of this appeal, we decided Pace v. Bogal usa City Sch. Bd. , 403

F.3d 272 (5th

Cir. 2005) (en banc), which, as

TDPS has appropriately acknowledged in supplemental briefing, forecloses all but two of its

arguments for reversing the denial of sovereign

immunit y: (1) that despite ac cepting federal

funds conditioned on a waiver of immunity, it

doe s not have authority , as a matter of state

la w, t o waive immunity from suit in federal

court; and (2) that §§ 504 and 2000d-7 fail the

relatedness requirement set forth in South

Dakota v. Dole

, 483 U .S. 203 (1987).

Although not addressed in Pace

, those content ions are now foreclosed by in Miller v. T ex.

Tech Univ. Health Scis. Ctr.

, 2005 U.S. App.

LEXIS 17244 (5th Cir. Aug. 15, 2005 ) (en

banc).

Therefore, b ased on these precedents, we

AFFIRM the denial of TDPS’s motion to dismiss on the basis of state sovereign immunit y,

and we REMAND this matter for further proceedings. * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the l imited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 See Board of Trustees of Univ. of Ala. v. Garrett

, 531 U.S. 356 (2001) (holding that title I of the

ADA did not validly a brogate state sovereign

immunity pursuant to Section Five of the Fourteenth Amendment); Reickenbacker v. Foster

, 274

F.3d 974 (5th Cir. 2001) (holding that title II of the

ADA and § 504 the Rehabilitation Act, which offer

protections almost identical to those of the ADA,

did not validly abrogate state sovereign i m munity

pursua nt to Section Five of the Fourteenth

Amendment).

2 Thereafter, on leave from the di strict court,

Espinoza amended her complaint to assert an ADA

claim against the director of the TDPS in his

official capacity under Ex Parte Young

, 209 U.S.

12 3 (1908), for which she sought prospective injunctive relief and attorney’s fees. No challenge to

this claim is presently before us.