NATIONAL ASSOCIATION OF THE DEAF, EDDIE I. SIERRA, Plaintiffs-Appellees,
STATE OF FLORIDA, THE FLORIDA SENATE, THE HONORABLE BILL GALVANO, in his official capacity as President of the Florida Senate, THE FLORIDA HOUSE OF REPRESENTATIVES, THE HONORABLE JOSE OLIVA, in his official capacity as Speaker of the Florida House of Representatives, FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, the public body corporate acting for and behalf of Florida State University, JOHN THRASHER, in his official capacity as President of Florida State University, Defendants-Appellants.[†]
Appeals from the United States District Court for the
Southern District of Florida D.C. Docket No. 1:18-cv-21232-UU
MARTIN, TJOFLAT, and TRAXLER, [*] Circuit Judges.
MARTIN, CIRCUIT JUDGE.
Sierra, a resident of Florida, together with the National
Association of the Deaf brought suit under Title II of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act against several Florida entities and
officials. They challenge Defendants' failure to provide
captioning for live and archived videos of Florida
legislative proceedings. Defendants moved to dismiss, relying
largely on sovereign immunity. The District Court denied
Defendants' motions to dismiss, holding (1) that Congress
validly abrogated Defendants' Eleventh Amendment immunity
with respect to Plaintiffs' claims under Title II; (2)
that the Pennhurst exception to Ex parte
Young does not bar Plaintiffs' Title II claims for
declaratory and injunctive relief against certain state
officials; and (3) that it need not resolve whether sovereign
immunity shielded the Florida House and Legislature from
Plaintiffs' Rehabilitation Act claim at the motion to
dismiss stage. After careful consideration, and with the
benefit of oral argument, we affirm.
Sierra is a resident of South Florida. He is a concerned
citizen interested in state legislative issues and a
disability rights advocate. He is also deaf. The National
Association of the Deaf (the "NAD") is an
organization with members who are deaf or hard of hearing
that advocates for the full and equal participation of its
members in all aspects of society. Mr. Sierra is a member of
the NAD, and together they ("Plaintiffs") brought
suit against the State of Florida, the Florida Senate, the
President of the Florida Senate in his official capacity, the
Florida House of Representatives, the Speaker of the House of
the Florida House of Representatives in his official
capacity, the Florida State University Board of Trustees
("FSU"), and the President of Florida State
University in his official capacity (collectively,
dispute between the parties concerns access to videos of
legislative proceedings in the Florida Senate and House of
Representatives. The Senate and House each have websites that
provide livestreaming of proceedings, as well as archived
footage of past proceedings. These videos show the
legislature receiving information and statements from the
public, debating, negotiating, and voting on a host of
issues. FSU also owns and operates a website (through its
public broadcasting station, WFSU), that livestreams
legislative proceedings and maintains archived recordings of
the videos. In 2017, Plaintiffs sent a letter to the Florida
Senate and House requesting they provide, among other
services, captioning for these videos. To this date,
Defendants have neither responded to this letter nor provided
the requested captioning.
sued Defendants under Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12131 et seq.
("Title II" or "ADA"), and the
Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs
claim that Defendants violated the ADA and the Rehabilitation
Act by failing to put closed captions on both live and
archived videos of sessions of the Florida legislature,
because without them, people who are deaf and hard of hearing
could not comprehend those videos. They further allege that
Defendants intentionally discriminated against them on the
basis of disability and that such discrimination denied them
the opportunity to meaningfully participate in the democratic
process. Plaintiffs seek money damages and declaratory and
moved to dismiss Plaintiffs' Title II claims on the basis
of sovereign immunity, arguing that Congress had not validly
abrogated their sovereign immunity pursuant to its powers
under Section 5 of the Fourteenth Amendment. Defendants also
asserted that the injunctions sought by Plaintiffs- i.e., to
implement captioning-violated sovereign immunity because the
legislature could remove the videos from the web at any time
without violating federal law and, therefore, the injunction
sought to force Defendants to do something that federal law
does not require. The Legislative Defendants alone argued
they were entitled to sovereign immunity with respect to
Plaintiffs' Rehabilitation Act claim because they do not
receive federal financial assistance, which is a prerequisite
for liability under the Act.
District Court denied Defendants' motions in full. First,
it held that Congress validly abrogated Defendants'
sovereign immunity under Title II because (1) Defendants'
failure to provide captioning implicated Plaintiffs'
fundamental right to participate in the democratic process;
(2) even if that fundamental right were not implicated,
abrogation would be appropriate because Congress found
pervasive discrimination by state governments against the
deaf or hard of hearing; and (3) Title II was a congruent and
proportional response to Congress's finding of pervasive
discrimination. The District Court noted that adding captions
was unlikely to be burdensome, and if it was, Defendants
could assert Title II's affirmative defense of undue
the District Court held that the Florida state officials
named in Plaintiffs' complaint were not immune from
claims for prospective injunctive relief under the doctrine
of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441
the District Court denied the Legislative Defendants'
motion to dismiss Plaintiffs' Rehabilitation Act claim on
sovereign immunity grounds. The Legislative Defendants
attached to their motion to dismiss a declaration by a state
employee averring that the Florida House and Senate had
received no federal funds since 1999. The District Court
declined to resolve the question of sovereign immunity
because (1) the only evidence before it was a
"self-serving" affidavit; and (2) the information
regarding sources of financing was not likely to be available
to Plaintiffs without discovery.
filed this interlocutory appeal of the District Court's
rulings under the collateral order doctrine and 28 U.S.C.
§ 1291. We first address our jurisdiction to hear this
interlocutory appeal, and then take each issue in turn.
STANDARDS OF REVIEW
Court reviews de novo issues of federal subject
matter jurisdiction. Summit Med. Assocs., P.C. v.
Pryor, 180 F.3d 1326, 1333 (11th Cir. 1999).
"Similarly, a district court's denial of a motion to
dismiss on Eleventh Amendment grounds is a question of law
subject to de novo review." Id. at
1334. Last, "[w]hether the district court erred in
reserving a ruling on Eleventh Amendment immunity is an issue
involving the district court's supervision of
litigation," and we review such decisions for an abuse
of discretion. Bouchard Transp. Co. v. Fla. Dep't of
Envtl. Prot., 91 F.3d 1445, 1448 (11th Cir. 1996) (per
INTERLOCUTORY APPELLATE JURISDICTION
must, as always, determine our own jurisdiction before
proceeding further." Backe v. LeBlanc, 691 F.3d
645, 647 (5th Cir. 2012). Ordinarily, appellate courts have
jurisdiction only over final decisions of a district court.
See 28 U.S.C. § 1291. However, because "a
state's Eleventh Amendment immunity is 'an
entitlement not to stand trial or face the burdens of
litigation, '" Bouchard, 91 F.3d at 1448
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S.Ct. 2806, 2815 (1985)), interlocutory orders that deny the
Eleventh Amendment's guarantee of freedom from litigation
are immediately appealable. See Mitchell, 472 U.S.
at 525-27, 105 S.Ct. at 2815-16 (concluding that "the
denial of a substantial claim of absolute immunity is an
order appealable before final judgment, for the essence of
absolute immunity is its possessor's entitlement not to
have to answer for his conduct in a civil damages
action"). We therefore have jurisdiction to hear
Defendants' interlocutory appeal.
first decide whether Congress validly abrogated sovereign
immunity with respect to Plaintiffs' Title II claims.
Title II of the ADA states that "no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or
be subjected to discrimination by any entity." 42 U.S.C.
§ 12132. Plaintiffs assert Defendants violated this
provision by failing to provide captioning for online videos
of legislative proceedings. The Eleventh Amendment bars a
private citizen from suing a state, including a state
official in her official capacity, for damages in federal
court. See Kentucky v. Graham, 473 U.S. 159, 169,
105 S.Ct. 3099, 3107 (1985). However, Congress may validly
abrogate this immunity if (1) it "unequivocally
express[es] its intent to abrogate," Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640
(2000), and (2) it possesses the power to effectuate its
intent, Tennessee v. Lane, 541 U.S. 509, 517, 124
S.Ct. 1978, 1985 (2004).
II plainly expressed Congress's intent to abrogate
Eleventh Amendment immunity. See id. at 518, 124
S.Ct. at 1985 ("The Act specifically provides: 'A
State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal
or State court of competent jurisdiction for a violation of
this chapter.'" (quoting 42 U.S.C. § 12202)).
Thus the relevant question becomes whether Congress had the
power to effectuate its intent to abrogate Eleventh Amendment
certain circumstances, Congress has the power to abrogate
Eleventh Amendment immunity pursuant to its powers under
Section 5 of the Fourteenth Amendment. See Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 121 S.Ct.
955, 962 (2001). Section 5 authorizes Congress to enact
"appropriate legislation" to enforce the
substantive guarantees of Section 1 of the ...