Fifth Circuit Issues Good Opinion on Sovereign Immunity

On August 11, in a 2-1 opinion, the Fifth Circuit affirmed a district court decision that state officers, sued in their official capacities for prospective relief, are proper defendants under Title II of the Americans with Disabilities Act (ADA). In McCarthy v. Hawkins, the plaintiffs, a group of 21 Texans with mental disabilities and an organization, sued two state agencies and three state officials in their official capacities, using the Ex Parte Young exception to state sovereign immunity. They alleged violations of Title II of the ADA, which prohibits discrimination based on disability by ?public entities,?as well as violations of Section 504 of the Rehabilitation Act, the Medicaid Act and U.S. Constitution. On the ADA Title II claims, Texas argued that a state officer is not a proper defendant because only public entities can be liable. If accepted, this argument would be devastating for disability advocates because it would mean that the Ex Parte Young exception would not be available for suits under Title II, eliminating an important method of holding states accountable for disability discrimination. The Fifth Circuit rejected the argument, reasoning that an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Slip. Op. at 12 (citations omitted). Thus, the court held that ?defendants have been sued in their official capacities and are therefore representing their respective state agencies (which are proper Title II defendants) for all purposes except the Eleventh Amendment.? Id., at 12-13. The court joined the Second, Sixth, Seventh, Eighth and Ninth Circuits in rejecting this argument. The court also refused to hear Texas? arguments to dismiss the other claims, holding that their arguments essentially targeted the merits of the claims and, thus, could not properly be addressed on an interlocutory appeal. 
Judge Emilio Garza dissented in part, arguing, among other things, that the constitutionality of Title II and Section 504 are proper subjects for an interlocutory appeal. Moreover, he opined that Title II is unconstitutional.
Advocates should monitor this website for updates on whether Texas will petition for hearing en banc.
McCarthy v. Hawkins, No. 03-50608, (5th Cir. August 11, 2004).

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