Patricia Garrett, Milton Ash and Joseph Stephenson (collectively "Appellants") are residents of Alabama who suffer from disabilities. In separate civil actions in the Northern District of Alabama, they sued their former employers, the Board of Trustees of the University of Alabama in Birmingham (UAB) (Garrett), the Alabama Department of Youth Services (ADYS) (Ash), and the Alabama Department of Corrections (Stephenson) (collectively "the state agencies"), under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
"The grant or denial of a state's sovereign immunity defense is an issue of law subject to de novo review by this court." See In re Burke, 146 F.3d 1313, 1316 (11th Cir.1998).
Appellants argue that the state agencies waived their Eleventh Amendment immunity and willingly consented to private suits under the Rehabilitation Act when they accepted federal funds.
In Sandoval v. Hagan, 197 F.3d 484 (11th Cir.1999), overruled on other grounds, Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), we said that section 2000d-7 manifested an "unmistakable intent to condition federal funds on a state's waiver of sovereign immunity." Sandoval, 197 F.3d at 493. In addition, we said a state waives its Eleventh Amendment immunity if it continues to receive federal funds after the provision was enacted. Id. at 500.
The Sandoval court also said that Title VI of the Civil Rights Act of 1964 created an implied private right of action to enforce regulations promulgated under section 602. 197 F.3d at 502. The Supreme Court granted certiorari on this issue and reversed, saying only that Title VI did not create a private right of action to enforce the regulations. Alexander, 121 S.Ct. at 1523. The Supreme Court did not reject the Sandoval court's discussion of section 2000d-7 and its resolution of the waiver of Eleventh Amendment immunity issue.
The state agencies argue that Sandoval has been implicitly overruled by the Supreme Court in Federal Maritime Comm'n v. South Carolina State Ports Auth., 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).
While an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point. See Florida League of Professional Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir.1996)("[W]e are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.") "Without a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court...." National Labor Relations Board v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. Unit A Apr.1981)(emphasis added). Federal Maritime Comm'n and Sandoval are not clearly inconsistent. We are bound to follow Sandoval.
The state agencies also argue that, even if Sandoval was not overruled, they can prevail under the analysis of Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir.2001), and Pace v. Bogalusa City School Bd., 325 F.3d 609 (5th Cir.2003), rehearing en banc granted, 339 F.3d 348, 2003 WL 21692677 (5th Cir. July 17, 2003).
The state agencies argue that they could not have knowingly waived their immunity to claims under section 504 of the Rehabilitation Act because they thought they did not have immunity to waive. They argue that the ADA purported to abrogate a state's immunity to discrimination claims based on disabilities and, until the Supreme Court said — in Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) — that this abrogation was invalid, the state agencies had no reason to believe they were immune to these kinds of claims. They, therefore, claim that they could not make a voluntary waiver of immunity. See Garcia, 280 F.3d at 114 ("[T]he proscriptions of Title II [of the ADA] and § 504 are virtually identical, a state accepting conditioned federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits."). The state agencies point out that Sandoval addresses section 2000d-7's impact on Title VI of the Civil Rights Act of 1964 which does not have a parallel statute, like the ADA, purporting to abrogate a state's sovereign immunity.
Section 2000d-7 unambiguously conditions the receipt of federal funds on a waiver of Eleventh Amendment immunity to claims under section 504 of the Rehabilitation Act. By continuing to accept federal funds, the state agencies have waived their immunity.
VACATED and REMANDED.
Alexander, 121 S.Ct. at 1516 (citations omitted)