Rebuttal to Garcia on Waiver of Immunity

Judge Wiener of the Fifth Circuit Court of Appeals has written a powerful and innovative rejection of the 2d Circuit decision in Garcia v. SUNY Health Sciences Ctr., 280 F. 3d 98, (2d Cir. 2001).

Johnson v. Louisiana Dept. Of Education, 2003 WL 21000830 (5th Cir. May 5, 2003) (Wiener, J. Specially dissenting or specially concurring). Garcia held that a state could not knowingly waive its immunity if at the time it had reason to believe that Congress had abrogated its immunity, leaving the state with no real choice.

The Fifth Circuit adopted the Garcia analysis in Pace v. Bougalusa City School Board, 325 F. 3d 609 (5th Cir. 2003). Judge Weiner specially concurred in Johnson because he was bound to follow Pace, but he urged the Circuit to reverse Pace en banc. Sixth other Circuits have rejected the Pace approach and find a waiver of immunity by acceptance of federal funding. See cases cited by Wiener, J. in Johnson at fn. 24.

At its heart, the Wiener opinion distinguishes between the knowing waiver exception of 14th Amendment abrogation of sovereign immunity and the clearly and unambiguously stated non-coercive waiver exception for Spending Clause cases. Relying on language in the College Park decision by Justice Scalia, Judge Wiener concludes that in Spending power cases, the waiver of immunity is a condition precedent to accepting the federal funding, so it is immaterial whether the state mistakenly believed at the time that it had no real choice because Congress had validly abrogated its immunity. When the state accepted the funds, it had no expectation of immunity and cannot complain if that is the result accepted by the courts.

The majority opinion sets the date of the Garrett decision denying 14th Amendment power to abrogate immunity under Title I of the Americans with Disability Act at 2001, as the date when the states are in a position to knowingly waive its immunity. Justice Wiener, however, finds that the Supreme Court clearly made an ipso facto waiver of immunity in claims under Section 504 of the Rehabilitation Act of 1974 in 1998 in Lane v. Weiner, see Johnson at *6, in which case the cut-off date would be 1998.