Ephrim McMullen v. Wakulla County Board of County Commissioners , 650 F. App'x 703 ( 2016 )

Case: 15-14032 Date Filed: 05/25/2016 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14032
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cv-00117-WS-CAS
EPHRIM MCMULLEN,
Plaintiff - Appellant,
versus
WAKULLA COUNTY BOARD OF COUNTY COMMISSIONERS,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 25, 2016)
Before WILLIAM PRYOR, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
Case: 15-14032 Date Filed: 05/25/2016 Page: 2 of 12
Plaintiff Ephrim McMullen (“Plaintiff”) sued Defendant Wakulla County
Board of Commissioners (“Defendant”) for disability discrimination under the
Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court granted summary
judgment to Defendant after finding that the Rehabilitation Act did not apply. We
affirm.
I. Background
Plaintiff became a volunteer firefighter in Wakulla County in 2004. In
August 2013, the County’s fire chief and public safety director did not approve
Plaintiff’s nomination for battalion chief of the Apalachee Bay Volunteer Fire
Department (a paid position), because Plaintiff suffered from an unrepaired hernia.
According to Defendant, this medical condition disqualified Plaintiff from being a
firefighter.
Plaintiff alleged one count of disability discrimination under the
Rehabilitation Act in his Second Amended Complaint. The Rehabilitation Act
makes it unlawful for any “program or activity” receiving federal financial
assistance to discriminate on the basis of disability. 29 U.S.C. § 794. Defendant
moved for summary judgment on the sole ground that the County did not receive
any federal assistance for its Fire Rescue Department or for the provision of fire
services, and thus the Rehabilitation Act did not apply. Defendant cited Doyle v.
Univ. of Ala. in Birmingham, 680 F.2d 1323, 1326–27 (11th Cir. 1982), which
2
Case: 15-14032 Date Filed: 05/25/2016 Page: 3 of 12
narrowly interpreted “program or activity” to mean only the specific parts of a
governmental unit that directly receive federal financial assistance. But in the
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988),
Congress amended the definition of “program or activity” to include “all of the
operations of . . . a department, agency, special purpose district or other
instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A)
(emphasis added). Plaintiff thus argued that the relevant entity to consider was the
County as a whole, such that if any part of the County received federal funds, the
Rehabilitation Act applied.
The district court recognized that Congress had broadened the definition of
“program or activity,” and instead of citing Doyle, the court cited cases from other
Circuits interpreting the amended definition. Still, the court agreed with Defendant
that the relevant entity to consider was the County’s Fire Rescue Department, not
the entire County. The Fire Rescue Department comprises three divisions: fire
services, emergency medical services (“EMS”), and animal control. Under the
expanded definition, the court reasoned, the Department was covered by the
Rehabilitation Act if any of its divisions received federal funds. The court went on
to hold that no division received such funds and granted summary judgment to
Defendant.
3
Case: 15-14032 Date Filed: 05/25/2016 Page: 4 of 12
II. Analysis
We review a district court’s grant of summary judgment de novo. Holloman
v. Mail-Well Corp., 443 F.3d 832, 836–37 (11th Cir. 2006). Summary judgment is
appropriate where there is no genuine issue of material fact. Fed. R. Civ. P. 56(c).
Plaintiff raises two arguments on appeal: (1) the district court erred by applying
Doyle’s narrow interpretation of the Rehabilitation Act, and (2) there was
conflicting evidence about whether the Fire Rescue Department received federal
funds, but the district court resolved factual disputes when it sided with Defendant.
A. Scope of “Program or Activity”
This Court has not directly addressed whether Doyle remains good law in
light of the Restoration Act’s amendment to the Rehabilitation Act. In Doyle, we
held that it was not sufficient “simply to show that some aspect of the relevant
overall entity or enterprise receives or has received some form of input from the
federal fisc.” 680 F.2d at 1326 (quoting Brown v. Sibley, 650 F.2d 760, 769 (5th
Cir. Unit A July 1981)). Instead, “[a] private plaintiff in a [Rehabilitation Act]
case must show that the program or activity with which he or she was involved, or
from which he or she was excluded, itself received or was directly benefited by
federal financial assistance.” Id. at 1326–27 (quoting Brown, 650 F.2d at 769).
The Supreme Court adopted the same narrow interpretation of “program or
activity” for Title IX and Rehabilitation Act cases in Grove City College v. Bell,
4
Case: 15-14032 Date Filed: 05/25/2016 Page: 5 of 12
465 U.S. 555 (1984), and Consolidated Rail Corporation v. Darrone, 465 U.S. 624
(1984), respectively.
Congress then passed the Restoration Act “to restore the prior consistent and
long-standing executive branch interpretation and broad, institution-wide
application of” civil rights legislation, including the Rehabilitation Act. Pub. L.
No. 100-259, § 2(2). The Senate Report even declared that the purpose of the
legislation was “to overturn the Supreme Court’s 1984 decision in Grove City
College v. Bell” and, by extension, Consolidated Rail Corporation. S. Rep. No.
100-64, at 2 (1988), as reprinted in 1988 U.S.C.C.A.N. 3, 3–4. To that end,
Congress amended the definition of “program or activity” to include “all of the
operations of . . . a department, agency, special purpose district, or other
instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A).
The definition also covered, in the case of federal assistance to a State or local
government, the State or local government that distributes the assistance and each
department or agency that receives it. § 794(b)(1)(B).
Plaintiff contends that the expanded definition means that he need only show
that the County as a whole received federal funds, not the Fire Rescue Department
or, as our precedent in Doyle would require, the fire services division directly. We
are generally bound by a prior panel decision until that decision is overruled by the
Supreme Court or this Court sitting en banc, United States v. Steele, 147 F.3d
5
 Case: 15-14032 Date Filed: 05/25/2016 Page: 6 of 12
1316, 1318 (11th Cir. 1998) (en banc), but “where our authority derives from
Congress, . . . a clear change in the law by Congress could . . . justify a panel of
this court in not following an earlier panel’s decision, where the prior panel’s
decision was based on legislation that had been changed or repealed.” Sassy Doll
Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 840 (11th Cir. 2003)
(quoting United States v. Woodard, 938 F.2d 1255, 1258 n.4 (11th Cir. 1991)).
Because Congress amended the definition of “program or activity” for the purpose
of overturning Grove City College and Consolidated Rail Corporation, our
identical interpretation in Doyle is no longer good law. See Lussier v. Dugger, 904
F.2d 661, 664–65 (11th Cir. 1990) (noting that “the continued vitality of Grove
City was effectively eliminated by . . . the passage of the Civil Rights Restoration
Act”). We have not, however, construed the new definition of “program or
activity” in light of the Restoration Act.
“The starting point for all statutory interpretation is the language of the
statute itself.” United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir. 1999).
We read a statute’s words “as they are commonly and ordinarily understood, and
we read the statute to give full effect to each of its provisions.” Id. We therefore
find that “all of the operations of . . . a department, agency, special purpose district,
or other instrumentality of a State or of a local government,” 29 U.S.C.
§ 794(b)(1)(A), sweeps broader than our previous interpretation under Doyle. But
6
Case: 15-14032 Date Filed: 05/25/2016 Page: 7 of 12
the ordinary meaning of these terms cannot be construed to mean the County as a
whole, as Plaintiff suggests. The relevant unit is “a department, agency, special
purpose district or other instrumentality” of the County, such as the Fire Rescue
Department. So, if any operation of that Department—including fire services,
EMS, or animal control—receives federal funds, the whole Department is covered
by the Rehabilitation Act. On the other hand, Plaintiff cannot rely on funds
received by other County departments unconnected to his claim to show that the
Rehabilitation Act applies.
Our reasoning is consistent with other Circuits that have considered the
Rehabilitation Act’s amended language. In Schroeder v. City of Chicago, 927 F.2d
957 (7th Cir. 1991), the Seventh Circuit explained that the Restoration Act was
intended to overrule Grove City College and held that “‘program or activity’ was
expanded from a specific program or specific activity to ‘all the operations’ of the
university or hospital or other institution that conducted the program or activity . . .
But the amendment was not . . . intended to sweep in the whole state or local
government, so that if two little crannies (the personnel and medical departments)
of one city agency (the fire department) discriminate, the entire city government is
in jeopardy of losing its federal financial assistance.” Id. at 962.
The Eighth Circuit similarly held that the City of Omaha’s Public Safety
Department was the defining unit in a Rehabilitation Act suit, not the Fire Division
7
Case: 15-14032 Date Filed: 05/25/2016 Page: 8 of 12
within that department. Thomlison v. City of Omaha, 63 F.3d 786, 789 (8th Cir.
1995). So, while “the Fire Division did not receive any federal assistance directly,
other Public Safety Department divisions, including the Police Division, received
federal funds.” Id. As a result, the entire Public Safety Department was subject to
the Rehabilitation Act. Id. In reaching this conclusion, the court did not suggest
that federal funds received by other departments would trigger coverage under the
Rehabilitation Act.
Moreover, the Third Circuit rejected the argument that an entire state is
liable simply because one of its departments or agencies receives or distributes
federal funds. See Koslow v. Pennsylvania, 302 F.3d 161, 171 (3d Cir. 2002).
Importantly, the Third Circuit observed that “if the entire state government were
subject to [the Rehabilitation Act] whenever one of its components received
federal funds, subsection (b)(1)(B)[, which provides that both the government
entity that distributes federal funds and the entity that receives them are covered by
the Rehabilitation Act,] would be redundant.” Id.; accord Arbogast v. Kan., Dep’t
of Labor, 789 F.3d 1174, 1184 (10th Cir. 2015) (“Generally, courts considering the
scope of a state entity’s waiver under the Rehabilitation Act acknowledge that the
definition of ‘program or activity’ was not intended to sweep in the whole state or
local government whenever one subdivision discriminates. Rather, courts interpret
the phrase ‘program or activity’ to only cover all the activities of the department or
8
Case: 15-14032 Date Filed: 05/25/2016 Page: 9 of 12
the agency receiving federal funds.” (internal quotation marks, brackets, and
citations omitted)).
In sum, Doyle’s narrow interpretation of “program or activity” is no longer
good law. The district court correctly found that the relevant unit to consider was
the Fire Rescue Department and all of its operations, not the fire services division
alone or the County as a whole.
B. There Is No Evidence that the Fire Rescue Department Received
Federal Funds
Having concluded that the Fire Rescue Department is the relevant entity to
examine, we turn to whether there was evidence that any of the Department’s
operations received federal financial assistance. Plaintiff first asserts that
Defendant received annual “payments in lieu of taxes” from the federal
government, which payments benefitted the Fire Rescue Department. These
payments help offset lost property taxes from tax-immune federal land such as
wilderness areas and national parks located in the County. See 31 U.S.C.
§ 6902(a)(1) (providing that “the Secretary of the Interior shall make a payment for
each fiscal year to each unit of general local government in which entitlement land
is located”). Plaintiff notes that the payments are then deposited into the County’s
general revenue fund and are used to support EMS and animal control—units of
the Fire Rescue Department.
9
Case: 15-14032 Date Filed: 05/25/2016 Page: 10 of 12
The Rehabilitation Act does not define federal financial assistance, but we
have held that it means “the federal government’s provision of a subsidy to an
entity,” as opposed to providing compensation. Shotz v. Am. Airlines, Inc., 420
F.3d 1332, 1335 (11th Cir. 2005). The relevant inquiry in determining whether
certain federal funds constitute financial assistance turns on whether Congress
intended to compensate or provide a subsidy. Id. at 1336. The Supreme Court has
observed that Congress passed the Payment in Lieu of Taxes Act, 31 U.S.C.
§ 6901 et seq., to “compensate[] local governments for the loss of tax revenues
resulting from the tax-immune status of federal lands . . . located in their
jurisdictions, and for the cost of providing services related to these lands.”
Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 258 (1985)
(emphasis added). We therefore conclude that these payments are compensation
and do not amount to financial assistance within the meaning of the Rehabilitation
Act.
Plaintiff also argues that it was disputed whether the Fire Rescue
Department bought equipment like breathing apparatuses using federal funds.
Plaintiff relies on deposition testimony of the County Administrator, who testified
that the County received payments in lieu of taxes and grants for the Sheriff’s
Department. When asked whether the County received federal money for
firefighting, the County Administrator responded, “Other than through grants for
10
Case: 15-14032 Date Filed: 05/25/2016 Page: 11 of 12
buying some equipment or something like that, that would be about it.” Plaintiff
argues that this testimony “shows that [the Administrator was] aware that the Fire
Rescue Department did, in fact, receive federal funds for ‘buying some
equipment.’” As Defendant argues, however, the Administrator later said that he
did not actually know of any federal grants to that Department. The Administrator
was asked if the Department had purchased a fire truck with federal assistance, but
he said the Department had made no such purchase during his tenure. When asked
what else the Department had purchased with federal money, he responded, “I am
not sure. It would have been small apparatuses through small funds like, you
know, $2,000 here or $6,000 there for breathing apparatuses, et cetera. Nothing
big.” And then the Administrator said that the County had methods of tracking
grant money, and the best person to answer questions about those funds was the
County’s Finance Director, who in turn stated that he had thoroughly reviewed
Wakulla County’s recent budgets and confirmed that the County had not received
or spent any federal financial assistance in connection with the Fire Rescue
Department.
Considered in context, the County Administrator’s testimony showed he was
unsure if the Fire Rescue Department had received any federal grants. His
reference to breathing apparatuses was only speculation of what the grants “would
have been.” Plaintiff contends that when construing the facts in his favor, we must
11
Case: 15-14032 Date Filed: 05/25/2016 Page: 12 of 12
assume the Administrator meant that the Fire Rescue Department had received
federal funds, thus creating a genuine factual dispute. But an issue of fact is not
genuine unless a reasonable jury could return a verdict in favor of the nonmoving
party. Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013). And here the
record does not support the inference that the Administrator knew the Fire Rescue
Department received federal funds and was simply unable to remember the specific
grants, as Plaintiff insists. See id. (court should not adopt plaintiff’s version of
facts when that version “is blatantly contradicted by the record” (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007))). Instead, the Administrator deferred to the
County’s Finance Director, who stated that the Department did not receive any
federal funds. There is thus no genuine dispute that the Department did not receive
federal financial assistance. 1 Consequently, the Rehabilitation Act does not apply,
and the district court correctly granted summary judgment to Defendant.
III. Conclusion
For the reasons discussed above, we affirm the order of the district court
granting summary judgment to Defendant.
AFFIRMED.
1
Plaintiff mentions several other sources of federal assistance, none of which aided the Fire
Rescue Department. And while Plaintiff argues that the Department received certain FEMA
funds, he fails to cite to any such evidence in the record. In fact, the County Administrator said
that FEMA assistance went into a separate fund, and the Public Safety Director said that the Fire
Department did not receive any FEMA aid.
12