Thomas v. Univ. of Houston (5th Cir. 2005)

IN THE UNITED STATES COURT OF APPEALS        

FOR THE FIFTH CIRCUIT

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No. 02-20988
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BLEWETT WILLIAM THOMAS
                                                
                                                Plaintiff-Appellee

        v.

UNIVERSITY OF HOUSTON

                                                Defendant-Appellant

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Appeal from the United States District Court
for the Southern District of Texas, Houston
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Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit Judges

PER CURIAM:

Our recent decisions in Miller v. Tex. Tech Univ. Health Sci. Ctr., 421 F.3d 342 (5th Cir.
2005) (en banc), and Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (en
banc), resolve all of the remaining issues raised in this appeal.  We therefore AFFIRM the
district court’s holding that the defendant-appellant, the University of Houston, is not
immune under the Eleventh Amendment to the suit of the plaintiff-appellee, Blewett William
Thomas, based on § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.   

DISCUSSION

Plaintiff-appellee Blewett William Thomas (“Thomas”) alleges that the Social Security
Administration found him to be temporarily and totally disabled as a result of stress and
illness resulting from his employment as a litigation attorney.  To rectify this disability,
Thomas claims that his physicians directed him to suspend all employment and undertake
a rehabilitation program.  Specifically, Thomas’s physicians allegedly advised him to
eschew litigation and to return to a formal academic environment.  This suit resulted.   

To fulfill his rehabilitation program, Thomas repeatedly applied to the Master of Laws (“LL.
M”) program offered by the Law Center of defendant-appellant, the University of Houston
(“University of Houston” or “University”), beginning in October of 1998.  In conjunction with
this first application, Thomas allegedly informed the University about his disability status
and the nature of his planned rehabilitation.  The University rejected this initial application
to the LL.M program at the Law Center, but Thomas did win admission to the University’s
Department of Foreign and Classical Languages as a post-baccalaureate student in
Russian Studies.  Undaunted by his initial failure, and apparently unsatisfied with Russian
Studies, Thomas redoubled his efforts to enter the University’s LL.M program.  
Unfortunately, his subsequent applications met with no greater success than his initial
efforts.    

Following at least three rejections by the University’s LL.M program, Thomas filed this suit
in the Southern District of Texas, Houston Division, on February 14, 2001.  In his
complaint, Thomas alleged the University committed multiple violations of his constitutional
rights as part of a continuing pattern of discrimination and retaliation against him during
the period of October 15, 1998 through March 30, 2000.  The University moved to dismiss,
claiming Eleventh Amendment immunity.  The district court dismissed most of Thomas’s
claims, but it refused to dismiss his claim under § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (“§ 504”).  See District Ct. Op. at 6-8 (declining to dismiss Thomas’s
Rehabilitation Act claim, after surveying recent precedent from this court and other
jurisdictions about waiver of sovereign immunity for states that accept federal funds under
the Rehabilitation Act).

The University appealed the district court’s decision to this court.  On January 17, 2003,
we granted the United States’s unopposed motion to intervene to defend the
constitutionality of 42 U.S.C. § 2000d-7.  We held this case in abeyance pending our en
banc opinions in Pace and Miller.

The only issue before us in this appeal is whether the University, an undisputed arm of the
state of Texas, can assert sovereign immunity under the Eleventh Amendment against
Thomas’s § 504 claims.  “We review Eleventh Amendment immunity determinations . . . de
novo as a question of law.”  United States v. Tex. Tech Univ., 171 F.3d 279, 288 (5th Cir.
1999) (citing Ussery v. Louisiana, 150 F.3d 431, 434 (5th Cir. 1998)).  The statute at issue
is 42 U.S.C. § 2000d-7, which reads in relevant part:

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 . . . or the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.

Congress enacted this provision in order to demonstrate to state agencies that eligibility
for federal financial assistance is conditional upon waiver of Eleventh Amendment immunity
to discrimination suits under the identified statutes.  See Pederson v. La. State Univ., 213
F.3d 858, 875-76 (5th Cir. 2000) (concluding that Section 2000d-7 validly conditions
acceptance of federal funds on a waiver of sovereign immunity to claims under Title IX);
see also Lane v. Pena, 518 U.S. 187, 197-200 (1996).  

This court has resolved this precise issue in two recent en banc decisions.  Then as now,
we held that a state “waive[s] Eleventh Amendment immunity from suit under § 504 by
accepting federal funds under such circumstances [the express conditions of 42 U.S.C. §
2000d-7].”  Miller, 421 F.3d at 347 (citing Pace, 403 F.3d at 272).  In a supplemental letter
brief filed after our recent decisions, the University concedes that “[t]his appeal presents
the same issues, and is thus governed by Miller.”  (Appellant’s Supplemental Letter Br. at
1.)  We agree.  Accordingly, the decision of the district court is

AFFIRMED.