Bowers v. Natl Collegiate , 346 F.3d 402 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
8-20-2003
Bowers v. Natl Collegiate
Precedential or Non-Precedential: Precedential
Docket No. 02-3236P
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PRECEDENTIAL
Filed August 20, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-3236, 01-4226, 01-4492, 02-1789
MICHAEL BOWERS
v.
THE NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, as an Association
and a Representative of its Member
Schools a/k/a NCAA; THE NCAA INITIAL-
ELIGIBILITY CLEARINGHOUSE; CEDRIC W. DEMPSEY,
Executive Director of the NCAA, in his individual
and official capacities; CALVIN SYMONS, Managing
Director of the NCAA Student-Eligibility Clearinghouse,
in his individual and official capacities; TEMPLE
UNIVERSITY OF THE COMMONWEALTH SYSTEM OF
HIGHER EDUCATION; ACT INC; UNIVERSITY OF IOWA;
AMERICAN INTERNATIONAL COLLEGE;
THE STATE OF NEW JERSEY,
Intervenor-Defendant in District Court
TEMPLE UNIVERSITY OF THE COMMONWEALTH
SYSTEM OF HIGHER EDUCATION,
Defendant/Third-Party Plaintiff
v.
DELAWARE STATE UNIVERSITY;
THE UNIVERSITY OF MEMPHIS;
UNIVERSITY OF MASSACHUSETTS AMHERST,
Third-Party Defendants
2
University of Massachusetts Amherst
and Delaware State University,
Appellants in 02-3236
*KATHLEEN BOWERS, administratrix ad
prosequendum of the Estate of
Michael Bowers
v.
THE NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, as an Association
and a Representative of its Member
Schools a/k/a NCAA; THE NCAA INITIAL-
ELIGIBILITY CLEARINGHOUSE;
CEDRIC W. DEMPSEY, Executive Director
of the NCAA, in his individual and
official capacities; CALVIN SYMONS,
Managing Director of the NCAA Student-
Eligibility Clearinghouse, in his
individual and official capacities;
TEMPLE UNIVERSITY OF THE COMMONWEALTH
SYSTEM OF HIGHER EDUCATION; ACT, INC.;
UNIVERSITY OF IOWA; AMERICAN INTERNATIONAL
COLLEGE
THE STATE OF NEW JERSEY,
Intervenor-Defendant in District Court
TEMPLE UNIVERSITY OF THE COMMONWEALTH
SYSTEM OF HIGHER EDUCATION,
Defendant/Third-Party Plaintiff
v.
3
DELAWARE STATE UNIVERSITY;
THE UNIVERSITY OF MEMPHIS;
UNIVERSITY OF MASSACHUSETTS AMHERST,
Third-Party Defendants
The University of Memphis,
Appellant in No. 01-4226
*(Amended Per Clerk’s Order of 11/6/02)
*KATHLEEN BOWERS, administratrix ad
prosequendum of the Estate of
Michael Bowers
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, as an
Association and a Representative of its Member Schools
a/k/a NCAA; THE NCAA INITIAL-ELIGIBILITY
CLEARINGHOUSE; CEDRIC W. DEMPSEY, Executive
Director of the NCAA, in his individual and official
capacities; CALVIN SYMONS, Managing Director of the
NCAA Student-Eligibility Clearinghouse, in his individual
and official capacities; TEMPLE UNIVERSITY OF THE
COMMONWEALTH SYSTEM OF HIGHER EDUCATION;
ACT, INC.; UNIVERSITY OF IOWA; AMERICAN
INTERNATIONAL COLLEGE;
THE STATE OF NEW JERSEY,
Intervenor-Defendant in District Court
TEMPLE UNIVERSITY OF THE COMMONWEALTH
SYSTEM OF HIGHER EDUCATION,
Defendant/Third-Party Plaintiff
v.
4
DELAWARE STATE UNIVERSITY;
THE UNIVERSITY OF MEMPHIS;
UNIVERSITY OF MASSACHUSETTS AMHERST,
Third-Party Defendants
University of Iowa,
Appellant in No. 01-4492
*(Amended Per Clerk’s Order of 11/6/02)
*KATHLEEN BOWERS, administratrix ad
prosequendum of the Estate of
Michael Bowers
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, as an
Association and a Representative of its Member Schools
a/k/a NCAA; THE NCAA INITIAL-ELIGIBILITY
CLEARINGHOUSE; CEDRIC W. DEMPSEY, Executive
Director of the NCAA, in his individual and official
capacities; CALVIN SYMONS, Managing Director of the
NCAA Student-Eligibility Clearinghouse, in his individual
and official capacities; TEMPLE UNIVERSITY OF THE
COMMONWEALTH SYSTEM OF HIGHER EDUCATION;
ACT, INC.; UNIVERSITY OF IOWA; AMERICAN
INTERNATIONAL COLLEGE;
THE STATE OF NEW JERSEY,
Intervenor-Defendant in District Court
TEMPLE UNIVERSITY OF THE COMMONWEALTH
SYSTEM OF HIGHER EDUCATION,
Defendant/Third-Party Plaintiff
v.
5
DELAWARE STATE UNIVERSITY;
THE UNIVERSITY OF MEMPHIS;
UNIVERSITY OF MASSACHUSETTS AMHERST,
Third-Party Defendants
The University of Massachusetts,
Appellant in No. 02-1789
*(Amended Per Clerk’s Order of 11/6/02)
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 97-cv-02600)
Honorable Stephen M. Orlofsky, District Judge
Argued July 8, 2003
BEFORE: NYGAARD, SMITH, and GREENBERG,
Circuit Judges
(Filed: August 20, 2003)
Richard L. Bazelon (argued)
Bazelon, Less & Feldman
1515 Market Street
7th Floor
Philadelphia, PA 19102
Barbara E. Ransom
Public Interest Law Center
of Philadelphia
125 South 9th Street
Suite 700
Philadelphia, PA 19107
Attorneys for Appellees Michael
Bowers and Kathleen Bowers,
administratrix ad prosequendum of
the Estate of Michael Bowers
6
Shannon D. Farmer (argued)
Abigail L. Flitter, Esq.
John B. Langel, Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51st Floor
Philadelphia, PA 19103
Attorneys for Appellee Temple
University
Jack J. Wind
Margulies, Wind, Herrington,
& Knopf
15 Exchange Place, Suite 510
Jersey City, NJ 07302
Thomas S. Miller
Attorney General
Gordon E. Allen (argued)
Deputy Attorney General
1305 East Walnut Street
Hoover State Office Building,
2nd Floor
Des Moines, IA 50319
Attorneys for Appellant University
of Iowa
Andrea M. Silkowitz
Office of Attorney General of
New Jersey
Division of Law
124 Halsey Street
P.O. Box 45029
Newark, NJ 07102
Attorney for State of New Jersey
7
Ralph F. Boyd, Jr.
Assistant Attorney General
Seth M. Galanter
Sarah E. Harrington (argued)
United States Department of Justice
Civil Rights Division
Appellate Section
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Attorneys for Intervenor United
States of America
Michael K. Willison
Dickie, McCamey & Chilcote
One Greentree Centre
Suite 201
Marlton, NJ 08053-3105
Attorneys for Appellant Delaware
State University
Peter L. Frattarelli
Archer & Greiner
One Centennial Square
P.O. Box 3000
Haddonfield, NJ 08033
Kae Carpenter Todd
Mary M. Collier (argued)
Assistant Attorney General
Civil Litigation and State
Services Division
Office of the Attorney General
of Tennessee
P.O. Box 20207
Nashville, TN 37202
Attorneys for Appellant University
of Memphis
8
Linda B. Celauro (argued)
John J. Peirano
Gary S. Prish
Carpenter, Bennett & Morrissey
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102
Attorneys for Appellant University
of Massachusetts
Thomas C. Hart
Ruprecht, Hart & Weeks
306 Main Street
Millburn, NJ 07041
Attorneys for American
International College
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
This matter comes on before this court on appeals by the
University of Iowa (“Iowa”), Delaware State University
(“Delaware State”), the University of Massachusetts
(“UMass”), and the University of Memphis (“Memphis”) in
an action Michael Bowers brought under Title II of the
Americans with Disabilities Act (“ADA”) and section 504 of
the Rehabilitation Act as well as under the New Jersey Law
Against Discrimination (“NJLAD”). Among the appellants,
however, Bowers sued only Iowa although he also sued
Temple University (“Temple”), which is an appellee and is
participating in this appeal, and certain other parties that
have been dismissed from the action or are not
participating in the appeal. During the course of the
proceedings, Michael Bowers has died leading to his mother
Kathleen Bowers being substituted for him. Nevertheless,
as the parties have done in their briefs, as a matter of
convenience we will treat him as the sole appellant in this
opinion referring to him as “Bowers”.
9
In determining this matter, we accept as true the facts
Bowers alleged in his complaint, as amended, and the facts
Temple alleged in its third-party complaint against
Memphis, UMass, and Delaware State. Inasmuch as the
history of this case is long and complicated, we set forth
only the portions necessary for resolution of the appeal.
The case may be said to have its origin in the
circumstances that Bowers played football in high school in
New Jersey and was interested in obtaining an athletic
scholarship at a National Collegiate Athletic Association
(“NCAA”) Division I or II school. The NCAA is an
unincorporated voluntary association of more than 1000
members, a majority of which are public and private four-
year colleges. See Cureton v. NCAA, 198 F.3d 107, 110 (3d
Cir. 1999). In fact, the universities involved on this appeal
are NCAA members.
Bowers suffered from a diagnosed learning disability that
prevented him from taking several of the secondary school
courses the NCAA considers to be core requirements for
athletic eligibility and for the award of an athletic
scholarship. The complaint and third-party complaint allege
that the five universities we have mentioned, i.e., Temple,
Iowa, Delaware State, UMass, and Memphis, recruited
Bowers for their football programs but that the NCAA
Clearinghouse, which determines whether student-athlete
prospects meet required education guidelines, determined
that he did not meet the requirement that a student take
13 core courses in his secondary school. In 1996, after the
universities learned of Bowers’s status, they ceased
recruiting him.1
On May 23, 1997, Bowers filed a complaint alleging that
the NCAA, the NCAA Initial Eligibility Clearinghouse, and a
number of individual defendants violated, inter alia, the
ADA and the Rehabilitation Act in their treatment of him.
After the district court denied Bowers’s motion for
preliminary injunctive relief, Bowers v. NCAA, 974 F. Supp.
459, 467 (D.N.J. 1997), he amended his complaint to join
Temple, Iowa, and American International College as
1. Temple accepted Bowers as a regular admission student, but
restricted his access to its athletic facilities.
10
defendants and to add state law claims under the NJLAD.
The district court subsequently granted summary judgment
in favor of the Clearinghouse and granted in part and
denied in part the motions for summary judgment filed by
the NCAA, Temple, Iowa, and American International
College.2 Bowers v. NCAA, 9 F. Supp. 2d 460 (D.N.J. 1998).
Following the district court’s disposition of subsequent
motions for summary judgment in Bowers v. NCAA, 118 F.
Supp. 2d 494 (D.N.J. 2000), Temple filed a third-party
complaint on November 21, 2000, seeking contribution for
any monetary liability it might have to Bowers from
Delaware State, UMass, and Memphis. These three
universities had not been parties to this litigation and
Bowers has not sued any of them.
Subsequently, Bowers moved to add claims against Iowa
and on July 3, 2001, the district court granted that motion.
Bowers v. NCAA, Civ. No. 97-2600, 2001 WL 1772801, at
*10 (D.N.J. July 3, 2001). In its opinion, in response to
Iowa’s contention that the amendment would be futile as it
was immune from suit, the court held that Iowa was not an
arm of the State of Iowa for Eleventh Amendment purposes
and thus it was not immune. Id. at * 9. Iowa did not appeal
from that order at that time.
All three third-party defendants moved to dismiss the
third-party complaint, arguing that neither Title II nor
section 504 contemplates an award for contribution and
further arguing, in the cases of Memphis and Delaware
State, that the Eleventh Amendment applied to them and
barred Temple’s action against them as the provisions for
abrogation and waiver of immunity in the two statutes were
unconstitutional. The district court, on November 7, 2001,
granted in part and denied in part Memphis’s motion,
holding that Memphis was an arm of the State of Tennessee
for Eleventh Amendment purposes, Temple’s contribution
claim under the NJLAD against Memphis was barred by the
doctrine of sovereign immunity, there is a right of
contribution under Title II of the ADA and section 504 of
2. A consent agreement and order dismissing the action without
prejudice as to American International College was filed on December 3,
2001.
11
the Rehabilitation Act, Congress validly abrogated
Memphis’s Eleventh Amendment immunity under Title II of
the ADA, and Memphis waived its Eleventh Amendment
immunity under the Rehabilitation Act by accepting federal
funds. Bowers v. NCAA, 171 F. Supp. 2d 389, 397-409
(D.N.J. 2001).
The district court denied with prejudice Delaware State’s
motion to dismiss Temple’s claims for contribution under
Title II and section 504 as, unlike Memphis with respect to
the State of Tennessee, it did not come forward with
evidence demonstrating its relationship to the State of
Delaware. Id. at 399. The court, however, did not make
other dispositive rulings on the Eleventh Amendment
issues, though it did invite UMass and Delaware State to
submit additional briefing on these issues and granted
Temple an opportunity to reply to this briefing.3 Id. at 409.
Memphis filed a notice of appeal from the November 7,
2001 order on November 21, 2001, and Iowa filed a notice
of appeal from the July 3, 2001 order on December 21,
2001.
On November 21, 2001, UMass filed a motion pursuant
to 28 U.S.C. § 1292(b) for a prescribed statement with
respect to the district court’s ruling that there is a right of
contribution under Title II and section 504 of the
Rehabilitation Act. Delaware State joined in that motion but
Memphis did not. On December 7, 2001, UMass filed
supplemental papers in support of its motion to dismiss,
addressing the Eleventh Amendment issues, but Delaware
State did not file any similar additional papers. On March
6, 2002, the district court granted the motions of UMass
and Delaware State for a certified order pursuant to 28
3. The court allowed the additional briefing so that UMass and Delaware
State could demonstrate their relationships to their respective states to
determine whether they were entitled to sovereign immunity on Temple’s
claim for contribution on the NJLAD claim. Bowers, 171 F. Supp. 2d at
409. We are not clear as to why in view of its denial of Delaware State’s
motion for dismissal predicated on sovereign immunity on the Title II
and section 504 claims by reason of its failure to demonstrate that it was
entitled to the benefit of the Eleventh Amendment as an arm of the State
of Delaware, the court allowed it to file the supplemental brief on the
NJLAD claim.
12
U.S.C. § 1292(b) with respect to the contribution issues. It
also found that UMass was an arm of the State of
Massachusetts for Eleventh Amendment purposes, but
consistently with its order with respect to Memphis, denied
UMass’s motion to dismiss Temple’s claims against it under
section 504 and Title II and dismissed Temple’s claims
against it under the NJLAD. It also dismissed Temple’s
claim for contribution under the NJLAD against Delaware
State as it declined to exercise supplemental jurisdiction
under 28 U.S.C. § 1367 over that claim. Bowers v. NCAA,
188 F. Supp. 2d 473, 481-82 (D.N.J. 2002). These
dispositions left Temple’s claim for contribution under Title
II and section 504 alive against all three third-party
defendants but eliminated the NJLAD contribution claim
from the third-party complaint. The court, however, stayed
all proceedings related to the third-party complaint pending
resolution of Memphis’s appeal. Id. at 483.4
Iowa now appeals at No. 01-4492 from the district court’s
order reflecting its finding that it is not an arm of the State
of Iowa for Eleventh Amendment purposes and Iowa,
Memphis at No. 01-4226, and UMass at No. 02-1789,
appeal from the district court’s orders reflecting its
Eleventh Amendment determinations with respect to the
abrogation of and waiver of sovereign immunity. Delaware
State did appeal from the district court’s order denying its
motion to dismiss on Eleventh Amendment grounds but it
has dismissed that appeal voluntarily. With our permission
UMass and Delaware State appeal at No. 02-3236 from the
district court’s orders of November 7, 2001, and March 6,
2002, reflecting its conclusion that there is a right to
contribution under Title II of the ADA and section 504 of
the Rehabilitation Act. On March 19, 2002, the United
States filed a notice of intervention pursuant to 28 U.S.C.
§ 2403(a), advising that it was intervening to argue that
Congress validly abrogated the states’ Eleventh Amendment
immunity under Title II and that states accepting federal
funds waived that immunity under the Rehabilitation Act.
Thus, the appeals raise significant issues with respect to
4. This opinion was the ninth the district court had issued in this case.
See Bowers, 188 F. Supp. 2d at 477. We do not doubt that there will be
more.
13
Iowa’s status under the Eleventh Amendment, the
abrogation and waiver of the states’ Eleventh Amendment
immunity by and pursuant to the ADA and the
Rehabilitation Act, and whether there can be a right of
contribution under those acts. Preliminarily, however, we
address procedural and jurisdictional matters with respect
to Iowa and Memphis.
II. JURISDICTION AND STANDARD OF REVIEW
Subject to the timeliness issue with respect to Iowa’s
appeal, we have jurisdiction over the orders denying the
appellants Eleventh Amendment immunity under 28 U.S.C.
§ 1291 as those orders are final for purposes of appeal
under the collateral order doctrine. See Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144, 113 S.Ct. 684, 687 (1993). We have jurisdiction
with respect to the contribution issues under 28 U.S.C.
§ 1292(b). Inasmuch as we are deciding this appeal by
resolving questions of law, we are exercising de novo review.
See Lavia v. Pa. Dep’t of Corrs., 224 F.3d 190, 194-95 (3d
Cir. 2000).
III. DISCUSSION
A. TIMELINESS OF IOWA’S APPEAL
We first discuss the timeliness of Iowa’s appeal. On
December 21, 2001, Iowa filed a notice of appeal stating
that it appealed “from the following portions of the Orders
and Memoranda of the District Court entered on July 3,
2001 . . . .” Iowa App. at 30. Bowers has moved to dismiss
the appeal as being untimely.5 Clearly, Iowa filed this notice
5. The court docketed Iowa’s appeal at No. 01-4492. Nevertheless, when
Iowa filed its brief it bore the number 01-4226, which was the number
the court assigned to Memphis’s appeal. Moreover, the cover of the brief
recited that the appeal was from the order of November 7, 2001. Of
course, that was not correct as Iowa’s notice of appeal recited that the
appeal was from the order of July 3, 2001, and Iowa was not a party to
the November 7, 2001 order. Iowa’s procedure with respect to this brief
caused Bowers on April 23, 2002, to file a second motion to dismiss the
appeal at No. 01-4492. Though we are dismissing Iowa’s appeal we are
denying Bowers’s April 23, 2002 motion because it is not necessary and,
in any event, we would not dismiss an appeal merely because the brief
on the appeal carried the wrong docket number and its cover incorrectly
recited the date of the order being appealed.
14
after the 30-day deadline prescribed by Fed. R. App. P.
4(a)(1). Iowa appears to recognize that, under Torres v.
Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405(1988), this time limit is mandatory and jurisdictional, and
thus ordinarily its appeal would be untimely. See Iowa Br.
at 9. It nevertheless argues that we may and should
entertain its appeal because the interests of justice and
judicial economy dictate that we consider its appeal
together with the timely appeal of Memphis which also
raises Eleventh Amendment issues.
Memphis filed its notice of appeal on November 21, 2001,
appealing from the district court’s November 7, 2001 order
but Iowa was not a party to that order. Iowa, however, did
file its appeal 30 days after Memphis filed its appeal. Fed.
R. App. P. 4(a)(3) provides: “If one party timely files a notice
of appeal, any other party may file a notice of appeal within
14 days after the date when the first notice was filed . . . .”
Iowa argues that even though it did not file its appeal
within the Rule 4(a)(3) 14-day time limit that rule is a
nonmandatory rule of practice so that its late filing date
does not require us to dismiss its appeal. Iowa Br. at 10.
Although not expressly using the term in its brief, it in
effect argues that we may consider its appeal under our
“pendent” appellate jurisdiction as it contends that
Memphis’s notice of appeal “establishes the jurisdiction of
the Circuit over the entire case . . . .” Id. Thus, it seeks to
tie its appeal to that of Memphis for jurisdictional purposes.
Bowers, on the other hand, argues that Rule 4(a)(3)’s time
limit is mandatory and that our pendent jurisdiction cannot
reach so far as to encompass Iowa’s appeal.6 Bowers Br. at
24.
6. We are assuming without deciding that if Iowa had appealed from the
July 3, 2001 order within the 14-day period measured from November 7,
2001, its appeal would have been timely. We also are assuming without
deciding that the July 3, 2001 order was final and appealable under the
collateral order doctrine even though it arose in the context of the
granting of a motion to amend rather than the denial of a motion to
dismiss or for summary judgment, the usual context in which collateral
order appeals are taken. We may make these assumptions as we are, in
any event, dismissing the appeal.
15
In Torres, the Supreme Court held that omission of one
litigant’s name in a notice of appeal filed by 15 other
appellants required a conclusion that that party had not
appealed. The Court stated that “the mandatory nature of
the time limits contained in Rule 4 would be vitiated if
courts of appeals were permitted to exercise jurisdiction
over parties not named in the notice of appeal.” Torres, 487
U.S. at 315, 108 S.Ct. at 2407-08. The Court quoted the
Advisory Committee Note following Rule 3, which states:
“Rule 3 and Rule 4 combine to require that a notice of
appeal be filed with the clerk of the district court within the
time prescribed for taking an appeal. Because the timely
filing of a notice of appeal is ‘mandatory and jurisdictional,’
[citation omitted] compliance with the provisions of those
rules is of the utmost importance.” Id., 108 S.Ct. at 2408.
The Court also stated that, although a court may construe
the rules liberally in determining the sufficiency of a party’s
compliance with them, “it may not waive the jurisdictional
requirements of Rules 3 and 4, even for ‘good cause shown’
under Rule 2, if it finds that they have not been met.” Id.
at 317, 108 S.Ct. at 2409.
Nonetheless, in United States v. Tabor Court Realty Corp.,
943 F.2d 335, 344 (3d Cir. 1991), we held that,
notwithstanding the broad language of Torres, Rule 4(a)(3)
is best considered a rule of practice so that compliance with
it is not a jurisdictional prerequisite. We further held that
“in some cases, the rights of the parties are so closely tied
together that an appellate court can render no judgment
that would be just without affecting the rights of the parties
who did not file notices of appeal.” Id. Yet, subsequently, in
EF Operating Corp. v. American Buildings, 993 F.2d 1046,
1049 n.1 (3d Cir. 1993), we noted that the broad language
of Torres overruled several of our precedents that had held
that rules like Rule 4(a)(3) were rules of practice. Without
citing Tabor Court, we stated that “there is no reason to
believe that the specific time requirement of Rule 4(a)(3) is
not jurisdictional.” Id.Bowers urges us to consider Tabor Court to be a pendent
appellate jurisdiction case, the holding of which does not
withstand the Supreme Court’s recent narrow view of that
doctrine in Swint v. Chambers County Commission, 514
16
U.S. 35, 115 S.Ct. 1203 (1995). We recently have observed
that our discretionary, though narrow, exercise of pendent
appellate jurisdiction after Swint has been limited to two
circumstances: “inextricably intertwined orders or review of
the non-appealable order where it is necessary to ensure
meaningful review of the appealable order.” E.I. DuPont de
Nemours & Co. v. Rhone Poulenc Fiber & Resin
Intermediates, S.A.S., 269 F.3d 187, 203 (3d Cir. 2001).
Here, however, we have no need to reconcile our
precedents. Indisputably, considering the July 3, 2001
order by itself Iowa failed to file a timely appeal. Of course,
it was that order that determined that Iowa was not an arm
of the State of Iowa for Eleventh Amendment purposes and
thus was not entitled to sovereign immunity under the
amendment. In the November 7, 2001 order, by contrast,
the district court did not make any determinations with
respect to Iowa. Moreover, in contrast to its conclusion with
respect to the relationship of Iowa to its state, it held that
Memphis was an arm of the State of Tennessee for
Eleventh Amendment purposes, but that Congress validly
had abrogated the states’ immunity under that amendment
in Title II and the State of Tennessee had waived that
immunity pursuant to section 504 of the Rehabilitation Act
by reason of Memphis having accepted federal funds. Thus,
Iowa’s argument fails under even the most liberal of the
standards enunciated in Tabor Court for, as we set forth
above, the principles of that case apply only where “the
rights of the parties are so closely tied together that an
appellate court can render no judgment that would be just
without affecting the rights of the parties who did not file
notices of appeal.”
Moreover, DuPont suggests that the exercise of pendent
appellate jurisdiction requires, at the very least, that the
orders from which the appeals are taken be “inextricably
intertwined.”7 The July 3 and November 7 orders are not
7. The Supreme Court’s decision in Swint suggests that a court should
exercise pendent appellate jurisdiction with particular restraint where an
appellant invokes pendent-party rather than pendent-issue jurisdiction.
See Charles A. Wright et al., 16 Federal Practice and Procedure 2d
§ 3937, at 696-97 (2d ed. 1996 & Supp. 2003).
17
“tied together” or “inextricably intertwined.” Our resolution
of the Eleventh Amendment questions posed by Memphis’s
appeal would not be material to the decision that Iowa is
not an arm of the State of Iowa for Eleventh Amendment
purposes and a ruling with respect to Iowa’s status under
the Eleventh Amendment would be independent of our
determinations with respect to Memphis. Accordingly, we
will dismiss Iowa’s appeal at No. 01-4492 because it was
not timely filed, and do not consider whether Iowa is an
arm of the State of Iowa for Eleventh Amendment purposes.8
B. THE STATUS OF MEMPHIS ON THIS APPEAL
Temple urges that we should dismiss Memphis’s appeal
for the following reasons. On November 6, 2002, Temple
filed in the district court a notice of dismissal without
prejudice of its third-party complaint against Memphis
pursuant to Fed. R. Civ. P. 41(a) which provides in
pertinent part, with inapplicable exceptions, that “an action
may be dismissed by the plaintiff without order of court . . .
by filing a notice of dismissal at any time before service by
the adverse party of an answer or of a motion for summary
judgment, whichever first occurs . . . .” Memphis
acknowledged at oral argument before us that the rule is
applicable to third-party complaints (a point with which we
agree) and that prior to November 6, 2002, notwithstanding
its extensive participation in this case, it had not filed an
answer or a motion for summary judgment.9 Thus, the
8. We realize that depending on the future course of this litigation we
may have to entertain Iowa’s Eleventh Amendment arguments following
final judgment. Accordingly, there is much to be said in favor of
considering them now and possibly saving the parties and the district
court from engaging in what may prove, at least in part, to be
unnecessary proceedings. Indeed, Iowa makes this very point. Iowa Br.
at 14. Nevertheless, a court of appeals cannot create jurisdiction on a
theory that it would be convenient to do so. In determining to dismiss
Iowa’s appeal we have not overlooked the circumstances that we are
dismissing Memphis’s appeal. Rather, we find it unnecessary to consider
whether the dismissal of Memphis’s appeal would have eliminated
jurisdiction over Iowa’s appeal as we have not had such jurisdiction in
the first place.
9. The parties have not explained in their procedural histories how
Memphis has avoided filing an answer but we are not concerned with
this point as our examination of the docket sheet confirms that it has
not done so.
18
dismissal would appear to have removed Memphis from the
litigation.
Memphis, nevertheless, urges that the notice of dismissal
was ineffective and that, in any event, we should not simply
dismiss its appeal without granting it certain relief. With
respect to the first contention, it reasons that inasmuch as
it filed its appeal before Temple filed its notice of dismissal,
the district court did not have jurisdiction to dismiss the
case “over those aspects of [the] case included in the
appeal.” Letter from Peter L. Frattarelli, attorney for
Memphis, to court (Nov. 18, 2002). In this regard, Memphis
cites Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58, 103 S.Ct. 400, 402 (1982). Therefore, Memphis
considers that it still is a party in the district court.
Nevertheless, Memphis does not object to dismissal of its
appeal and of Temple’s third-party complaint against it
“provided that the dismissal of all claims against [it] is with
prejudice and that the Court assesses [its] costs to Temple.”
Letter of November 18, 2002.
In considering whether to dismiss its appeal, we reject
Memphis’s request that we modify Temple’s notice of
dismissal in the district court to provide that it is with
prejudice. After all, Rule 41(a) provides that “[u]nless
otherwise stated in the notice of dismissal . . . the dismissal
is without prejudice . . . .” Thus, Temple in specifying that
the dismissal was without prejudice merely followed the
rule. Consequently, even in the absence of the “without
prejudice” provision, the effect of the notice of dismissal
would have been the same. Furthermore, we see no reason
why Temple should not be able partially to dismiss its
third-party complaint as authorized by Rule 41(a).
We, however, are not unmindful of Memphis’s claim that
it should be awarded its costs. At oral argument before us
it pointed out that it had expended substantial funds in
defense of this action. Nevertheless, we are satisfied that
Temple should not be required to pursue a claim that it
seeks to abandon, i.e., the third-party complaint against
Memphis, merely because the party against whom it has
asserted the claim has expended effort and resources in
defense against it. Thus, we will dismiss Memphis’s appeal
at No. 01-4226 but will do so without prejudice to it
19
seeking an order from the district court to compensate it for
its costs and fees in both the district court and in this
court. Of course, we express no opinion on whether it is
entitled to recover these expenses as the district court will
resolve that issue on the remand of the case we are
ordering.
In reaching our result, we are cognizant of Memphis’s
argument that the notice of dismissal was ineffective as the
district court lost jurisdiction over the case when Memphis
appealed. To the contrary, we will accommodate that
argument by remanding the matter to the district court
where Temple again should file the notice of dismissal. Cf.
Venen v. Sweet, 758 F.2d 117, 123 (3d Cir. 1985) (court of
appeals may remand case to the district court for that court
to have jurisdiction to grant a motion under Fed. R. Civ. P.
60(b)). In the circumstances, we have no need to determine
whether the original notice of dismissal was effective.
We make one further point with respect to Memphis’s
status. We are dismissing its appeal on the basis of our
understanding that Temple continues to wish to dismiss
Memphis from the case and thus, on the remand we are
ordering, will refile its notice of dismissal. If it does not do
so promptly Memphis may move in this court to reinstate
its appeal.10
C. THE JURISDICTIONAL NATURE OF THE ELEVENTH
AMENDMENT
The district court permitted the third-party complaint to
go forward notwithstanding its holdings that two of the
third-party defendants, Memphis and UMass, were arms of
their respective states and thus could invoke the Eleventh
Amendment. It reached this result because it held that they
waived immunity under the Rehabilitation Act by their
acceptance of federal funds and because Congress had
10. We realize that under our opinion even if Temple does not file the
notice of dismissal Memphis could move to dismiss the third-party
complaint against it. Inasmuch as we are taxing costs in favor of UMass
and Delaware State against Temple the district court might think it
appropriate to follow the same course with respect to Memphis.
20
abrogated their immunity by enacting Title II of the ADA.
These holdings permitted the district court to exercise
jurisdiction notwithstanding the Eleventh Amendment
which recites that “[t]he judicial power of the United States
shall not be construed to extend to any suit in law or equity
commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” Moreover, as we have indicated, the
district court held that there is a right of contribution
under the Rehabilitation Act and the ADA. If the court had
reached a contrary result either in its abrogation and
waiver of immunity holdings or its contribution holding it
would have dismissed UMass from this case, and if it
reached a contrary result on the contribution issue it would
have dismissed Delaware State from the case.11 Accordingly,
there are two independent bases on which it is possible
that Temple’s contribution claims must fail as a matter of
law against the remaining third-party defendants, UMass
and Delaware State, either that the Eleventh Amendment
precludes the claims against UMass or that neither the
Rehabilitation Act nor the ADA permits claims for
contribution.12
It might be thought that we should consider the statutory
construction argument first for in Hindes v. FDIC, 137 F.3d
11. The court did not reach a definitive conclusion of the question of
whether the Eleventh Amendment was applicable to Delaware State as it
reserved judgment on that question with respect to the claim for
contribution against it on the NJLAD count. Yet, it did deny Delaware
State’s Eleventh Amendment motion to dismiss on sovereign immunity
grounds Temple’s claim for contribution on the Title II and section 504
claims as Delaware State did not establish that the amendment was
applicable to it. While a contrary result on the immunity question with
respect to Delaware State on the Title II and section 504 claims
(including the court’s abrogation and waiver holdings) also would have
led to its dismissal from the case, it does not challenge those
determinations on this appeal.
12. There is a third basis on which the contribution claims could fail,
i.e., that the third-party complaint did not state a claim on which relief
could be granted as a matter of law even if claims for contribution were
permissible under the Rehabilitation Act and the ADA. See n.16 infra.
But neither UMass nor Delaware State advances this theory on this
appeal.
21
148, 166 (3d Cir. 1998), we observed that Eleventh
Amendment immunity questions are “constitutional in
scope” and that “[c]ourts, of course, will avoid such
questions where possible.” On the other hand, questions as
to the scope of the Rehabilitation Act and ADA with respect
to the availability of contribution are not constitutional in
scope. In Hindes, applying the approach of avoiding
constitutional questions, we declined to determine whether
suit was proper under the Ex Parte Young, 209 U.S. 123,
28 S.Ct. 441 (1908), exception to Eleventh Amendment
immunity inasmuch as the anti-injunction provision of the
Financial Institutions Reform, Recovery, and Enforcement
Act of 1989 (“FIRREA”) barred the suit. We explained our
ruling in Hindes by stating: “[W]e need not decide difficult
jurisdictional issues where we can decide the case on
another dispositive issue in favor of the party who would
benefit by a ruling that we do not have jurisdiction.” Id.(citing Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623
(3d Cir. 1996)).
Yet, within one month after we decided Hindes, the
Supreme Court decided Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 118 S.Ct. 1003 (1998). In Steel
Co. the Court rejected the notion of “hypothetical
jurisdiction” adopted by some courts of appeals, whereby a
court would “assume” jurisdiction for purposes of deciding
the merits of a case, at least where the court could resolve
the merits question more easily and the prevailing party on
the merits would be the same as the prevailing party if
jurisdiction were denied. Id. at 93-94, 118 S.Ct. at 1012.
Inasmuch as in entertaining Hindes we exercised
hypothetical jurisdiction it would be plausible for us now to
hold that notwithstanding Hindes, in the light of Steel Co.,
we initially must address the Eleventh Amendment issues
raised on this appeal.
Yet, Steel Co. may be somewhat limited as it specifically
indicated that “Article III jurisdiction is always an
antecedent question.” Id. at 101, 118 S.Ct. at 1016(emphasis added). In fact, the Court recognized that in its
prior cases it had decided, for example, whether a statutory
cause of action existed before determining statutory
standing questions such as whether the plaintiff comes
22
within the zone of interests protected by the statute. Id. at
96-97, 118 S.Ct. at 1013 (citing Nat’l RR Passenger Corp. v.
Nat’l Ass’n of RR Passengers, 414 U.S. 453, 365 n.13, 94
S.Ct. 690, 696 n.13 (1974)). Steel Co., therefore, should not
be understood as requiring courts to answer all questions
of “jurisdiction,” broadly understood,13 before addressing
the existence of the cause of action sued upon. Instead,
that case requires courts to answer questions concerning
Article III jurisdiction before reaching other questions.14
We, therefore, must consider whether the Eleventh
Amendment immunity issues presented by this case are
questions of Article III jurisdiction or are at least sufficiently
similar to such questions to require application of Steel Co.
As the Steel Co. Court stated, the “triad of injury in fact,
causation, and redressability constitutes the core of Article
III’s case-or-controversy requirement.” Id. at 103-04, 118
S.Ct. at 1017 (footnote omitted). The Eleventh Amendment
has little bearing on these Article III concerns. See Calderon
v. Ashmus, 523 U.S. 740, 745 n.2, 118 S.Ct. 1694, 1697
n.2 (1998) (“While the Eleventh Amendment is jurisdictional
in the sense that it is a limitation on the federal court’s
judicial power, and, therefore, can be raised at any stage of
13. “ ‘Jurisdiction,’ it has been observed, ‘is a word of many, too many,
meanings.’ ” Steel Co., 523 U.S. at 90, 118 S.Ct. at 1010 (quoting United
States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).
14. In fact, even this rule is not hard and fast after Steel Co. Three
justices in that case would have decided the easier statutory question
without reaching the jurisdictional question. Id. at 112, 131-34, 118
S.Ct. at 1030-32, (Stevens, J., concurring, joined by Souter, J., and
Ginsburg, J.). Three more justices agreed with the majority that the
jurisdictional question properly was addressed first in that case, but left
open the possibility that in other cases, courts may reserve difficult
questions of jurisdiction when the case alternatively could be resolved on
the merits in favor of the party who would have prevailed in the absence
of jurisdiction. Id. at 110-11, 118 S.Ct. at 1020 (O’Connor, J.,
concurring, joined by Kennedy, J.); id. at 111-12, 118 S.Ct. at 1020-21
(Breyer, J., concurring). Thus, six justices maintained the position that
in some circumstances a court may reserve certain questions of
jurisdiction, even if those questions involve Article III jurisdiction, in
favor of deciding the case on statutory grounds. We, however, need not
go that far, inasmuch as we are asked to resolve a question not of Article
III jurisdiction but of Eleventh Amendment immunity.
23
the proceedings, we have recognized that it is not
coextensive with the limitations on judicial power in Article
III.”); but see Wisconsin Dep’t of Corrs. v. Schacht, 524 U.S.
381, 389, 391, 118 S.Ct. 2047, 2052, 2054 (1998) (noting
that the “Eleventh Amendment . . . does not automatically
destroy original jurisdiction” and that the Court never has
resolved whether, or to what extent, “Eleventh Amendment
immunity is a matter of subject matter jurisdiction.”). It
cannot, in any event, seriously be disputed that this case
meets the minimum requirements for Article III jurisdiction.
While we have not had occasion to consider whether Steel
Co. requires the resolution of Eleventh Amendment issues
before a court reaches different issues, other courts of
appeals have done so. As it happens, they have split fairly
evenly on this issue, with three courts reading Steel Co.
broadly and holding that courts must address the Eleventh
Amendment issue first as it raises an Article III type
restriction, Martin v. Kansas, 190 F.3d 1120, 1126 (10th
Cir. 1999); United States v. Texas Tech Univ., 171 F.3d 279,
287 (5th Cir. 1999); Seaborn v. Florida Dep’t of Corrs., 143
F.3d 1405, 1407 (11th Cir. 1998), while at least three
courts have held to the contrary, United States ex rel. Long
v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892 (D.C. Cir.
1999); Parella v. Ret. Bd. of the R.I. Employees’ Ret. Sys.,
173 F.3d 46 (1st Cir. 1999); Kennedy v. Nat’l Juvenile Det.
Ass’n, 187 F.3d 690, 696 (7th Cir. 1999) (not citing Steel
Co.); see also Kovacevich v. Kent State Univ., 224 F.3d 806,
816 (6th Cir. 2000) (finding that “the Eleventh Amendment
is not jurisdictional in nature,” but addressing that issue
first where a state defendant had raised it). The Supreme
Court has not resolved this dispute.
The Court of Appeals for the Fifth Circuit well articulated
the view that a court must address Eleventh Amendment
issues first. Recognizing that courts often interpret statutes
so as to avoid constitutional problems, the court
distinguished cases relying on that practice by finding that
“[t]he Eleventh Amendment’s admonition is jurisdictional in
nature.” Texas Tech, 171 F.3d at 285. The court explained:
“While often noted for preserving state sovereignty, the
Amendment only accomplishes this end through
jurisdictional limitation. . . . Its negative instruction on how
24
to construe federal judicial power operates as an additional
boundary on that power, supplementing the restraints on
judicial power already implicitly provided in Article III of the
Constitution.” Id. The court recognized the Supreme Court’s
recent statement that the Eleventh Amendment “is not co-
extensive with the limitations on judicial power in Article
III,” Calderon, 523 U.S. at 745 n.2, 118 S.Ct. at 1697 n.2,
but opined that the Eleventh Amendment nonetheless is
“certainly intertwined with Article III jurisprudence,” Texas
Tech, 171 F.3d at 285 n.9.
Notwithstanding the views of the Court of Appeals for the
Fifth Circuit we are convinced that this “intertwining” does
not require that we apply the rule of Steel Co. in this case.
Rather, we are convinced that the Court of Appeals for the
First Circuit expressed a better view in Parella. In that case,
the court recognized the intertwined nature of the two
constitutional provisions, both of which place limits on
judicial power. Parella, 173 F.3d at 54. The court further
noted other characteristics of the Eleventh Amendment that
support such a view of the Eleventh Amendment, namely,
that the Eleventh Amendment can be raised for the first
time on appeal and that a court sua sponte may raise
Eleventh Amendment issues. Id. Nonetheless, the court
observed, “the nature of the Eleventh Amendment is more
complex than these decisions acknowledge.” Id. at 54-55.
For example, a state may waive Eleventh Amendment
immunity, and, although courts may raise Eleventh
Amendment issues sua sponte, they are not required to do
so. Id. (citing Schacht, 524 U.S. at 389, 118 S.Ct. at 2052).
The characteristics of Eleventh Amendment immunity the
court identified in Parella comport with Justice Kennedy’s
understanding that the Supreme Court’s “precedents have
treated the Eleventh Amendment as ‘enact[ing] a sovereign
immunity from suit, rather than as a nonwaivable limit on
the federal judiciary’s subject-matter jurisdiction.’ ”
Schacht, 524 U.S. at 394, 118 S.Ct. at 2055 (Kennedy, J.,
concurring) (quoting Idaho v. Coeur d’Alene Tribe, 521 U.S.
261, 267, 117 S.Ct. 2028, 2033 (1997)). Furthermore, as
the Court of Appeals for the First Circuit noted in Parella,
in Calderon the Supreme Court stated that the Eleventh
Amendment is not co-extensive with Article III’s limitations
25
and that it should consider the question whether an
inmate’s declaratory judgment action presented an Article
III case or controversy before it could consider the parties’
Eleventh Amendment and First Amendment contentions.
Parella, 173 F.3d at 55. If the Supreme Court considered
Eleventh Amendment immunity to be an Article III concern,
it would be expected that the Court at least would have
made reference to it when deciding the Article III question
rather than putting the immunity issue aside for
consideration after its resolution of the case or controversy
issue.
Finally, the main object underlying Steel Co. is that
courts not declare the law where they do not have Article III
jurisdiction because any opinion in such a situation would
be advisory, thus raising separation of powers problems.
Steel Co., 523 U.S. at 101, 118 S.Ct. at 1016. Eleventh
Amendment immunity, on the other hand, does not affect
a court’s underlying power to hear a given case or
controversy. If it did, courts would be obligated to raise
Eleventh Amendment issues sua sponte, but the Supreme
Court has held that they have no such obligation. See
Parella, 173 F.3d at 55-56 (citing Schacht, 524 U.S. at 387-
91, 118 S.Ct. at 2052-53). Furthermore, if the presence of
Eleventh Amendment immunity implicated case or
controversy concerns, states would not be able to waive
that immunity by their conduct in a given case.
The Eleventh Amendment’s limitations on judicial power
are, therefore, in the nature of a constitutional recognition
of the states’ sovereign immunity, not a statement of a
nonwaivable absence of subject-matter jurisdiction.
Accordingly, Eleventh Amendment cases do not raise the
same separation of powers concerns with respect to
hypothetical jurisdiction as do Article III standing cases.
We, therefore, hold that, notwithstanding Steel Co., a court
may reserve judgment on Eleventh Amendment issues even
when advanced by a state where it can resolve the case on
other grounds and the prevailing party on the merits would
be the same as the prevailing party if immunity were
recognized.15
15. Inasmuch as UMass does not urge that we resolve the Eleventh
Amendment questions before we decide the statutory contribution
26
We follow that course here. Even though, as will be seen,
our nonconstitutional disposition of this case will not be
easy, still it is better to decide the case on that basis than
to address the constitutional jurisdictional issues under the
Eleventh Amendment. Thus, we pass the Eleventh
Amendment issues with respect to UMass and in view of
our conclusions on the contribution issue dismiss its
appeal at No. 02-1789 as moot.
D. RIGHT TO CONTRIBUTION UNDER TITLE II AND
THE REHABILITATION ACT
In considering the right to contribution, we start with
section 504 of the Rehabilitation Act which provides: “No
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving federal financial assistance.”16 29 U.S.C.
questions, conceptually, at least, we could hold that it has waived its
Eleventh Amendment immunity to that very limited extent. See SCS
Bus., 173 F.3d at 892-93. Indeed, in its brief advancing its Eleventh
Amendment arguments, UMass urges that “the right of action for
contribution question should be addressed first, as its resolution may
avoid the need to address the constitutionality issues herein.” UMass Br.
at 18 n.3. Moreover, Delaware State has not raised the Eleventh
Amendment in this court and, therefore, regardless of what our
disposition of UMass’s Eleventh Amendment claims might be we,
nevertheless, could not avoid considering the contribution issues on this
appeal. See n.11, supra.
16. The district court held in its November 7, 2001 opinion that the
circumstances of the case are such that Temple might be able to obtain
contribution from the third-party defendants. Bowers, 171 F. Supp. 2d
at 397-98. We have some question about whether that holding was
correct but we neither accept nor reject it. See, e.g. Harka v. Nabati, 487
A.2d 432, 434-35 (Pa. Super. Ct. 1985) (Pennsylvania law). In this
regard, we point out that the alleged wrongs attributable to Temple and
the third-party defendants were independent to the extent that each
such university made its own determination with respect to Bowers. See
Cureton, 198 F.3d at 110 (NCAA “member institutions continue to make
individual admission decisions”). On the other hand, they acted similarly
because all followed the NCAA rules. We, however, will not decide this
case by a review of the district court’s view of whether contribution
might be available here, except with respect to statutory authorization,
inasmuch as neither UMass nor Delaware State has challenged the
district court’s holding on this point.
27
§ 794(a). The term “program or activity” includes “a college,
university, or other postsecondary institution, or a public
system of higher education.” Id. § 794(b)(2)(A). Though
section 504 does not in itself provide a private right of
action for aggrieved individuals, it does state that the
“remedies, procedures, and rights set forth in title VI of the
Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] shall
be available to any person aggrieved by any act or failure to
act by any recipient of federal financial assistance or federal
provider of such assistance under section 794 of this title.”
Id. § 794a(a)(2). Inasmuch as courts have held that Title VI
implies a private right of action, “private individuals may
sue to enforce § 601 of Title VI and obtain both injunctive
relief and damages.” Alexander v. Sandoval, 532 U.S. 275,
279, 121 S.Ct. 1511, 1516 (2001).
Title II of the ADA provides: “Subject to the provisions of
this subchapter, 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 such entity.” 42 U.S.C. § 12132. As
in the case of section 504, Title II does not, in terms, create
a private right of action. Instead, it provides that the
remedies, procedures and rights applicable to section 504
of the Rehabilitation Act also are applicable under Title II.
Id. § 12133.
Neither statute explicitly provides for a right to
contribution. The district court, however, found that such
a right exists by applying the reasoning in Musick, Peeler &
Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 113
S.Ct. 2085 (1993). UMass and Delaware State argue that
Musick is inapplicable in this case, and that, under Texas
Industries, Inc. v. Racliff Materials, Inc., 451 U.S. 630, 101
S.Ct. 2085 (1981), and Northwest Airlines, Inc. v. Transport
Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct.
1571 (1981), we should refuse to recognize a right to
contribution. Surprisingly, it appears that no federal
appellate court, at least of which we are aware, has
answered the question of whether there is a right to
contribution under Title II or under section 504 of the
Rehabilitation Act.
28
1. Right of Action or Remedy?
Preliminarily we consider whether we must determine if
a right of contribution is a right of action in itself or
whether it is a remedy. In an effort to distinguish this case
from Northwest Airlines and other cases derived from Cort
v. Ash, 422 U.S. 66, 95 S.Ct. 2080 (1975), in which the
Supreme Court narrowed the circumstances in which a
court may find an implied right of action, Temple argues
that the right of contribution is a remedy. In Temple’s view,
we, like the Supreme Court in Musick, should decline to
apply the strict test for implying a cause of action used in
Cort v. Ash, Northwest Airlines, and Texas Industries
because this case involves statutes that have been enforced
through judicially established rights of action rather than
through detailed remedial schemes. Temple argues that
instead we should apply a less exacting standard based on
Musick, asking only whether the availability of a right to
contribution should be implied as a proper part of the
liability apparatus created by the judiciary to enforce the
statutes. Temple Br. at 18. Thus, by treating the right to
contribution as a remedy, Temple not only seeks to avoid
the Cort v. Ash analysis, but also attempts to avail itself of
the principle that once a right and cause of action are
established, the federal courts are empowered broadly to
award any appropriate relief. See Franklin v. Gwinnett
County Pub. Schs., 503 U.S. 60, 70-71, 112 S.Ct. 1028,
1035-36 (1992).
This argument is something of a red herring, however. To
be sure, Supreme Court cases, at least since the 1970s,
have referred to rights, rights of action, and remedies
separately. Nonetheless, this case should not turn on our
characterization of the nature of contribution as the
Supreme Court has not determined whether contribution is
available by clearly distinguishing among rights, rights of
action, and remedies. Thus, in Northwest Airlines, the
Court stated: “Even though Congress did not expressly
create a contribution remedy, if its intent to do so may fairly
be inferred from either or both statutes, an implied cause
of action for contribution could be recognized on the basis of
the analysis used in cases such as Cort v. Ash . . . .” 451
U.S. at 90, 101 S.Ct. at 1580. In Texas Industries, the
29
Court, in deciding whether to find an implied right to
contribution, stated that its “focus, as it is in any case
involving the implication of a right of action, is on the intent
of Congress.” 451 U.S. at 639, 101 S.Ct. at 2066. Finally,
in Musick the Court refers to the right of contribution in
ways that could support an understanding of the claim as
either a right, a right of action, or a remedy. See 508 U.S.
at 291-92, 113 S.Ct. at 2088.
Thus, contribution cases are unlike discrimination cases,
in which the right at issue (the right to be free from
discrimination) is distinct from the remedy sought
(monetary or injunctive relief), in a way that makes
discussion of rights, rights of action, and remedies overlap.
Nevertheless, this inconsistency does not overly concern us
inasmuch as the key question before us is simply whether
Northwest Airlines/Texas Industries or Musick should guide
us and Musick did not distinguish the former cases as
“right of action” as opposed to remedy cases,17 but rather
did so on more analytic grounds that we will discuss
shortly.
2. Supreme Court Precedent Addressing Implied Rights
to Contribution
In Northwest Airlines, a class of flight attendants sued its
employer, Northwest Airlines, Inc., under the Equal Pay Act
and Title VII of the Civil Rights Act of 1964, challenging the
legality of the wage differential between pursers (who were
males) and stewardesses (who were females). The plaintiff
class won at trial, following which Northwest Airlines filed
a separate action stating a claim for contribution against
two unions that represented the employees with whom
Northwest Airlines had bargained collectively in setting the
employees’ wages. The Supreme Court held that there is
not an implied right to contribution under Title VII or the
17. Indeed, the Musick Court ultimately noted that it was being asked to
recognize “a cause of action that supports suit against these parties.”
508 U.S. at 292, 113 S.Ct. at 2088. We, too, are inclined to refer to
contribution as a cause of action in this context. In other words, Temple
asks us to recognize a cause of action for contribution, and the remedy
it will receive if successful on this cause of action is a monetary recovery.
30
Equal Pay Act. Northwest Airlines, 451 U.S. at 98, 101 S.Ct.
at 1584.
In Northwest Airlines, the Court explained that a right to
contribution can be created in either of two ways: either
Congress could have intended, explicitly or implicitly, to
create such a right under Cort v. Ash, or “a cause of action
for contribution may have become a part of the federal
common law through the exercise of judicial power to
fashion appropriate remedies for unlawful conduct.” Id. at
90, 101 S.Ct. at 1580. In examining the first possibility, the
Court explained: “In determining whether a federal statute
that does not expressly provide for a particular private right
of action nonetheless implicitly created that right, our task
is one of statutory construction. . . . The ultimate question
in cases such as this is whether Congress intended to
create the private remedy—for example, a right to
contribution—that the plaintiff seeks to invoke.” Id. at 91,
101 S.Ct. at 1580 (citation omitted). Factors relevant to
Congress’s intent include legislative history, the underlying
purpose and structure of the statutory scheme, and the
likelihood that Congress intended to supersede or to
supplement existing state remedies. Id., 101 S.Ct. at 1580
(citing Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088;
Cannon v. Univ. of Chicago, 441 U.S. 677, 689-709, 99
S.Ct. 1946, 1953-64 (1979)).
The Court then asked whether the language of the
statute demonstrated an intent to create a right of
contribution. Noting that neither statute expressly created
such a right, the Court explained that “[t]his omission,
although significant, is not dispositive if, among other
things, the language of the statutes indicates that they were
enacted for the special benefit of a class of which the
petitioner is a member.” 451 U.S. at 91-92, 101 S.Ct. at
1580-81. The Court concluded, however, that “it cannot
possibly be said that employers are members of the class
for whose especial benefit either the Equal Pay Act or Title
VII was enacted . . . . To the contrary, both statutes are
expressly directed against employers; Congress intended in
these statutes to regulate their conduct for the benefit of
employees . . . . In light of this fact, petitioner ‘can scarcely
lay claim to the status of “beneficiary” whom Congress
31
considered in need of protection.’ ” Id. at 92, 101 S.Ct. at
1581 (citation and footnotes omitted).
On this point, the Court specifically rebuked the court of
appeals, which had refused to apply Cort v. Ash literally in
evaluating the claim of a right to contribution. Id. at 92
n.25, 101 S.Ct. at 1581 n.25. The court of appeals had
asked, instead, whether employees could bring suit against
their unions under the statutes. The Court stated that this
inquiry confused the question whether the elements of a
contribution claim are established in a given case—a fact
the Court assumed in deciding the case and which, we also
assume here18—with the question of whether Congress
intended that contribution should be available under any
circumstances. Thus, “[t]he Court of Appeals erred . . .
because it failed to focus on whether the party seeking to
invoke the implied remedy is a member of a class that
Congress intended to benefit.” Id., 101 S.Ct. at 1581 n.25.
Next, the Court considered whether the structure of the
statutes might suggest that Congress intended to create a
right of contribution. Noting that both statutes established
“comprehensive programs designed to eliminate certain
varieties of employment discrimination” and contained
“express provision for private enforcement in certain
carefully defined circumstances, and provide[d] for
enforcement at the instance of the Federal government in
other circumstances,” the Court concluded that “[t]he
comprehensive character of the remedial scheme expressly
fashioned by Congress strongly evidences an intent not to
authorize additional remedies.” Id. at 93-94, 101 S.Ct. at
1581-82. The Court explained that “[i]t is, of course, not
within our competence as federal judges to amend these
comprehensive enforcement schemes by adding to them
another private remedy not authorized by Congress.” Id. at
94, 101 S.Ct. at 1582.
Finally, the Court noted that nothing in the legislative
history suggested a congressional intent to create a right to
contribution. Id., 101 S.Ct. at 1582. The Court recognized
18. We make this assumption in view of our determination that it would
be inappropriate, even if possible to do so, to decide this case on a
sufficiency of the pleading basis. See n.16, supra.
32
that it is not uncommon in an implied right of action case
to encounter such legislative silence and that, on its own,
such silence is not necessarily inconsistent with an intent
to create the remedy suggested. Id., 101 S.Ct. at 1582.
Nonetheless, in the absence of suggestions in the statutory
language or structure that Congress intended to create
such a right of action, “the essential predicate for
implication of a private remedy simply does not exist.” Id.,
101 S.Ct. at 1582.19
The Court also considered the second possible source of
a right of contribution, namely, federal common law. The
Court noted that, except in limited circumstances such as
cases involving the rights or duties of the United States or
resolution of interstate controversies, the courts’ power to
fashion federal common law is strictly limited. Id. at 95,
101 S.Ct. at 1582. The Court distinguished Cooper
Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct.
2174 (1974), in which it had found a nonstatutory right to
contribution in the admiralty setting, noting that the
constitutional grant of general admiralty jurisdiction to the
federal courts provides a basis for development of judge-
made rules in the area of maritime law. Id. at 95-96, 101
S.Ct. at 1583. Finally, the Court concluded that it should
not create a right to contribution where Congress had
“enacted a comprehensive legislative scheme including an
integrated system of procedures for enforcement.” Id., 101
S.Ct. at 1584. The Court left open the question whether
federal courts may have more power to fashion remedies in
other areas of the law, such as under the antitrust laws,
under which federal courts act more as common law
courts. Id. at 98 & n.42, 101 S.Ct. at 1584 & n.42.
That same term the Court addressed a question not
involved in but referred to in Northwest Airlines and
concluded that the antitrust laws do not confer on federal
courts the power to formulate a right to contribution where
Congress has not created the right explicitly. Texas Indus.,
19. In a footnote, the Court stated that in a case where neither the
statute nor the legislative history reveals a congressional intent to create
a private right of action for the benefit of the plaintiff, the Cort v. Ash
inquiry need continue no further. Id. 94 n.31, 101 S.Ct. at 1582 n.31.
33
451 U.S. at 646, 101 S.Ct. at 2070. The Court analyzed the
question of whether the antitrust laws establish a right of
contribution in the same manner as in Northwest Airlines.
It concluded that there was no congressional intent to
create such a right, noting that there was no indication of
such an intent in the language of the statute or in the
legislative history. Id. at 639, 101 S.Ct. at 2066. The Court
again noted that the statutes in question “were not adopted
for the benefit of the participants” in the prohibited conduct
in question. Id., 101 S.Ct. at 2066. Rather, the petitioner
was “ ‘a member of the class whose activities Congress
intended to regulate for the protection and benefit of an
entirely distinct class . . . .’ ” Id., 101 S.Ct. at 2066 (quoting
Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 37, 97 S.Ct.
926, 947 (1977) (emphasis in Texas Industries)). The Court,
therefore, concluded that any right to contribution could be
derived only from federal common law.
The Court then expanded on its discussion in Northwest
Airlines of federal courts’ power to recognize a right of
contribution as part of federal common law. The Court
explained that the power to formulate federal common law
is implicated in two basic types of cases: where a federal
rule of decision is necessary to protect “uniquely federal
interests,” and where “Congress has given the courts the
power to develop substantive law.” Id. at 640, 101 S.Ct. at
2067. The Court found that antitrust suits, which involve
the rights and interests of private parties, do not involve the
duties of the federal government, the distribution of powers
in the federal system, or matters necessarily subject to
federal control, and, therefore, do not involve “uniquely
federal interests.” Id. at 642, 101 S.Ct. at 2068.
With regard to the second type of case in which courts
have the power to formulate federal common law, the
paradigmatic case is Textile Workers Union v. Lincoln Mills,
353 U.S. 448, 77 S.Ct. 912 (1957), in which the Supreme
Court read section 301 of the Labor Management Relations
Act not only as a grant of jurisdiction over certain areas of
labor law but also as a grant of the power to develop
common law of labor-management relations. Texas Indus.,
451 U.S. at 642-43, 101 S.Ct. at 2068. The Court noted
that federal courts traditionally had broad common law
34
powers under the antitrust laws as well. Id. at 643, 101
S.Ct. at 2068. Nonetheless, the Court held that, although
Congress intended to give the courts the power to develop
common law defining violations of the antitrust laws, there
was no similar indication of congressional intent with
regard to the provisions of the antitrust laws providing for
treble damages and other remedies. Id. at 643-44, 101
S.Ct. at 1068-69. Instead, the Court held, the “detailed and
specific” remedial provisions set forth in the Sherman Act
give rise to a strong presumption that Congress deliberately
omitted a contribution remedy from the statute. Id. at 644-
45, 101 S.Ct. at 2069-70. The Court, therefore, concluded
that the antitrust laws do not confer on federal courts “the
broad power to formulate the right to contribution sought
here.” Id. at 646, 101 S.Ct. at 2070.
In Musick, however, the Court followed a different course,
distinguishing Northwest Airlines and Texas Industries and
holding that defendants in an action under Rule 10b-5 of
the Securities Exchange Commission adopted pursuant to
the Securities Exchange Act of 1934 have a right to seek
contribution under federal law. 508 U.S. at 297, 113 S.Ct.
at 2091. The Court distinguished Northwest Airlines and
Texas Industries, as well as the precedents on which those
cases were based, as follows:
The federal interests in both Texas Industries and
Northwest Airlines were defined by statutory provisions
that were express in creating the substantive damages
liability for which contribution was sought. Recognizing
that the applicable statutes did not ‘implicate “uniquely
federal interests” of the kind that oblige courts to
formulate federal common law,’ Texas Industries, 451
U.S. at 642, 101 S.Ct. at 2068, we asked whether
Congress ‘expressly or by clear implication’ envisioned
a contribution right to accompany the substantive
damages right created, id. at 638, 101 S.Ct. at 2066,
or, failing that, whether Congress ‘intended courts to
have the power to alter or supplement the remedies
enacted,’ id. at 645, 101 S.Ct. at 2069 . . . . But these
inquiries are not helpful in the present context. The
private right of action under Rule 10b-5 was implied by
the Judiciary on the theory courts should recognize
35
private remedies to supplement federal statutory
duties, not on the theory Congress had given an
unequivocal direction to the courts to do so. Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 737,
95 S.Ct. 1917, 1922, 1926, 44 L.Ed.2d 539 (1975).
Thus, it would be futile to ask whether the 1934
Congress also displayed a clear intent to create a
contribution right collateral to the remedy. [See
Franklin v. Gwinnett County Public Schools, 503 U.S.
60, 76, 112 S.Ct. 1028, 1039, 117 L.Ed.2d 208 (1992);
id. at 77, 112 S.Ct. at 1039 (Scalia, J., concurring)].
Id. at 290-91, 113 S.Ct at 2087-88. In response to the
argument that the precedents on which Northwest Airlines
and Texas Industries were based should control, the Court
continued:
This argument . . . would have much force were the
duty to be created one governing conduct subject to
liability under an express remedial provision fashioned
by Congress, or one governing conduct not already
subject to liability through private suit. That, however,
is not the present state of the jurisprudence we
consider here. The parties against whom contribution
is sought are, by definition, persons or entities alleged
to have violated existing securities laws and who share
joint liability for that wrong under a remedial scheme
established by the federal courts. Even though we are
being asked to recognize a cause of action that
supports a suit against these parties, the duty is but
the duty to contribute for having committed a wrong
that courts have already deemed actionable under
federal law. The violation of the securities laws gives
rise to the 10b-5 private cause of action, and the
question before us is the ancillary one of how damages
are to be shared among persons or entities already
subject to that liability. Having implied the underlying
liability in the first place, to now disavow any authority
to allocate it on the theory that Congress has not
addressed the issue would be most unfair to those
against whom damages are assessed.
We must confront the law in its current form. The
federal courts have accepted and exercised the
36
principal responsibility for the continuing elaboration
of the scope of the 10b-5 right and the definition of the
duties it imposes. As we recognized in a case arising
under § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a),
‘where a legal structure of private statutory rights has
developed without clear indications of congressional
intent,’ a federal court has the limited power to define
‘the contours of that structure.’ Virginia Bankshares,
Inc. v. Sandberg, 501 U.S. 1083, 1104, 111 S.Ct. 2749,
2764, 115 L.Ed.2d 929 (1991). As to this proposition
we were unanimous. See ibid. (SOUTER, J., joined by
REHNQUIST, C.J., and WHITE, O’CONNOR, and
SCALIA, JJ.); id., at 1114, 111 S.Ct., at 2768(KENNEDY, J., joined by MARSHALL, BLACKMUN, and
STEVENS, JJ., concurring in part and dissenting in
part) (‘Where an implied cause of action is well
accepted by our own cases and has become an
established part of the securities laws . . . we should
enforce it as a meaningful remedy unless we are to
eliminate it altogether’). See also Blue Chip Stamps,
supra, at 737, 95 S.Ct., at 1926 (recognizing the
authority of federal courts to ‘define the contours of a
private cause of action under Rule 10b-5’ and ‘to flesh
out the portions of the law with respect to which
neither the congressional enactment nor the
administrative regulations offer conclusive guidance’).
Id. at 292-93, 113 S.Ct. at 2088-89. The Court found
support for its conclusions in two amendments to the
securities laws, in which Congress appeared to
acknowledge the judicially created Rule 10b-5 action
“without any further expression of legislative intent to
define it.” Id. at 294, 113 S.Ct. at 2089.
Having declined to follow Northwest Airlines and Texas
Industries, the Court turned to “the question whether a
right to contribution is within the contours of the 10b-5
action.” Id., 113 S.Ct. at 2089. The Court explained,
however, that its “task is not to assess the relative merits
of the competing rules, but rather to attempt to infer how
the 1934 Congress would have addressed the issue had the
10b-5 action been included as an express provision in the
1934 Act.” Id., 113 S.Ct. at 2090. The Court acknowledged
37
that this exercise may appear to be “not a promising
venture as a general proposition,” but, nonetheless, found
that other specific sections of the 1934 Act to which Rule
10b-5 was analogous provided a right of contribution. Id. at
295-97, 113 S.Ct. at 2090-91.
Beginning with the language of section 10(b) itself, the
Court noted that the text provided little guidance as to a
right to contribution, but found that “[h]aving made no
attempt to define the precise contours of the private cause
of action under § 10(b), Congress had no occasion to
address how to limit, compute, or allocate liability arising
from it.” Id. at 295, 113 S.Ct. at 2090. The Court then
compared Rule 10b-5 to the eight express liability
provisions in the 1933 Securities Act and the 1934
Securities Exchange Act, and found that it was most
similar to two provisions that conferred an explicit private
right of action, because both provisions targeted the same
danger that was the focus of section 10(b), because both
had the same purpose “to deter fraud and manipulative
practices in the securities markets and to ensure full
disclosure of information material to investment decisions,”
and because Rule 10b-5 defendants stood in a similar
position to defendants in actions based on the other two
provisions. Id. at 296, 113 S.Ct. at 2090-91. Because those
two provisions each contained “nearly identical express
provisions for a right to contribution,” the Court concluded:
“Absent any showing that the implied § 10(b) liability
structure or the 1934 Act as a whole will be frustrated by
finding a right to contribution paralleling the right to
contribution in analogous express liability provisions, our
task is complete and our resolution clear: Those charged
with liability in a 10b-5 action have a right to contribution
against other parties who have joint responsibility for the
violation.” Id. at 298, 113 S.Ct. at 2091-92.
3. Applicability of Musick Analysis
Although the Court’s decision in Musick may seem to
have been something of a departure from the course it
appeared to be setting in Northwest Airlines and Texas
Industries, we can read the three cases harmoniously.
When a statute creates a private right of action but fails to
38
provide expressly for a right to contribution, particularly if
the remedial scheme created is detailed, Congress’s silence
with regard to contribution weighs heavily against implying
such a right because there is a presumption that the
silence reflects congressional intent not to create such a
right. On the other hand, when courts have implied a right
of action it would be “futile” to look for congressional intent
to create a right to contribution, inasmuch as Congress did
not intend explicitly to create the cause of action on which
such a right would be based. Musick, 508 U.S. at 291, 113
S.Ct. at 2088. In that situation, courts have somewhat
broader latitude to determine whether a right to
contribution is consistent with Congress’s intent in creating
the right sought to be enforced. The first question we must
resolve, therefore, is whether the private rights of action
under section 504 of the Rehabilitation Act and Title II are
express or implied.
This question is not as easily answered as one might
expect.20 In discussing rights and remedies available to
aggrieved persons, Title II cross-references the
Rehabilitation Act, which in turn cross-references Title VI of
the Civil Rights Act of 1964. Title II was enacted in 1990,
while the Title VI cross-reference of the Rehabilitation Act
was enacted in 1978. By 1978, courts had recognized a
private right of action under Title VI for at least a decade.
Cannon, 441 U.S. at 696-97, 99 S.Ct. at 1957 (finding
support, in a case decided in 1979, for a holding that Title
IX of the Educational Amendments of 1972, which was
modeled on Title VI, creates a private right of action from
the fact that a 1967 decision of the Court of Appeals for the
Fifth Circuit, Bossier Parish School Board v. Lemon, 370
F.2d 847 (5th Cir. 1967), finding a private right of action
under Title VI “was repeatedly cited with approval and
never questioned during the ensuing five years” and by
“presuming both that [the members of Congress who
enacted Title IX in 1972] were aware of the prior
interpretation of Title VI and that that interpretation
reflects their intent with respect to Title IX”).
20. All parties seem to assume in their briefs that private rights of action
under both acts have been implied by courts.
39
Thus, although the remedy available to persons aggrieved
by violations of the Rehabilitation Act and Title II is at root
an implied one, those statutes, by cross-referencing Title
VI, which already had been interpreted as creating a private
right of action, arguably contain explicit provisions creating
a private right of action. Indeed, the legislative history
discussing Title II’s cross-reference to sections 504 and 505
of the Rehabilitation Act explicitly states: “As with section
504, there is also a private right of action for persons with
disabilities, which includes the full panoply of remedies.”
H.R. Rep. No. 101-485, pt. 2, at 98, reprinted in 1990
U.S.C.C.A.N. 303, 381; id., pt. 3, at 52, reprinted in 1990
U.S.C.C.A.N. 445, 475 (“As in title I, the Committee adopted
an amendment to delete the term ‘shall be available’ in
order to clarify that Rehabilitation Act remedies are the only
remedies which title II provides for violations of title II. The
Rehabilitation Act provides a private right of action, with a
full panoply of remedies available, as well as attorney’s
fees.”).
Thus, Title II and section 504 are unlike Title VII of the
Civil Rights Act of 1964 or the antitrust laws, which spell
out the private right of action available to aggrieved
individuals, but are also unlike Rule 10b-5, which does not
by its language contemplate any sort of private right of
action. Of course, both the statutory language and the
legislative history of Title II and section 504 are silent with
respect to a right of contribution. The cross-reference
language in both acts, therefore, could support two distinct
inferences with respect to Congress’s intent: either
Congress intended to make available to aggrieved persons
the Title VI rights and remedies in place at the time of
passage of the two provisions (1978 for the Rehabilitation
Act and 1990 for the ADA) or Congress intended to allow
the rights and remedies under Title II and section 504 to
expand and retract as the courts defined the contours of
Title VI liability.
If the former is true, then we can say that, because
reported cases had not found a right to contribution under
Title VI as of 1978 or 1990 (or indeed as of the present),
Congress must not have considered a right to contribution
to be a part of the liability scheme of Title VI that should be
40
incorporated into the liability schemes of section 504 and
Title II. In other words, even though Congress
acknowledged the private right of action under Title VI,
which had been recognized by courts since at least 1967,
and intended to make a similar private right of action
available under section 504 and Title II, Congress could not
be said to be acknowledging a right to contribution under
Title VI, as the courts had not yet recognized that right.
Congress likely would have included language explicitly
providing for a right to contribution had it intended to
expand the Title VI rights and remedies incorporated into
section 504 and Title II. On the other hand, if we draw the
latter reference, then we should read the cross-referencing
language as an acknowledgment not of solely those rights
and remedies available at the time of passage of the acts
(e.g., a private right of action but not a right to
contribution) but also of the power of federal courts to
define the contours of Title VI (and, therefore, section 504
and Title II) liability in much the same way a common law
court might.
We find that Congress’s decision to incorporate Title VI’s
rights and remedies, including those defined by courts
rather than by Congress itself, into the Rehabilitation Act
and Title II by simple cross-reference, without attempting to
define more precisely those rights and remedies, constitutes
a recognition on Congress’s part of the somewhat broader
role of federal courts in defining the contours of Title VI
(and, therefore, section 504 and Title II) liability. Congress’s
use of cross-referencing language in section 504 and Title
II is similar, in analytic terms, to the amendments to the
securities laws considered by the Musick Court. Those two
amendments made explicit reference to “any cause of action
implied from a provision under this title” and to “any
private civil action implied under . . . this title.” Musick, 508
U.S. at 293-94, 113 S.Ct. at 2089. From this language, the
Court reached the same conclusion we reach here with
respect to section 504 and Title II: “We infer from these
references an acknowledgment of the 10b-5 action without
any further expression of legislative intent to define it.” Id.
at 294, 113 S.Ct. at 2089. The Court used this inference to
support its recognition of “judicial authority to shape,
within limits, the 10b-5 cause of action.” Id. at 293, 113
41
S.Ct. at 2089. Similarly, through the cross-referencing
language of the Rehabilitation Act and Title II, Congress
acknowledged the private Title VI right of action implied by
courts, but made no effort to define it more precisely.21
“That task, it would appear, Congress has left to us.” Id. at
294, 113 S.Ct. at 2089.
The legislative history of the ADA lends some support to
this view. In its discussion of Title III of the ADA, which
prohibits discrimination in public accommodations and,
therefore, cross-references the parallel Title II of the 1964
Civil Rights Act of 1964, the legislative history states: “As
with other titles of the bill, the Committee intends that
persons with disabilities have remedies and procedures
parallel to those available under comparable civil rights
laws. Thus, if the remedies and procedures change in title
II of the 1964 Act, . . . they will change identically in this
title for persons with disabilities.” H.R. Rep. No. 101-485,
pt. 3, at 66, reprinted in 1990 U.S.C.C.A.N. 445, 490
(emphasis added).
Furthermore, Congress rejected the minority view of
certain members that an amendment to Title I, which
prohibits employment in discrimination and cross-
references the parallel Title VII of the Civil Rights Act of
1964, should be adopted that would provide expressly for
only then-existing Title VII remedies. Id., pt. 2, at 167,
reprinted in 1990 U.S.C.C.A.N. 303, 444-45. The minority
members were concerned that Congress was considering
the Civil Rights Act of 1990, which would amend Title VII
to include punitive and compensatory damages as well as
21. Indeed, as noted above, the legislative history of the ADA makes even
more plain Congress’s recognition of the judicially implied private right
of action under Title VI and section 504: “As with section 504, there is
also a private right of action for persons with disabilities, which includes
the full panoply of remedies.” H.R. Rep. No. 101-485, pt. 2, at 98,
reprinted in 1990 U.S.C.C.A.N. 303, 381. Furthermore, the Supreme
Court has noted that section 1003 of the Rehabilitation Act, which was
enacted in 1986 to abrogate the states’ immunity to suit and which
referred to remedies at law and in equity “ ‘cannot be read except as a
validation of Cannon’s holding’ ” that Title VI creates a private right of
action. Alexander, 532 U.S. at 280, 121 S.Ct. at 1516 (quoting Franklin,
503 U.S. at 72, 112 S.Ct. at 1036).
42
injunctive relief and backpay, and, by reason of the cross-
reference in Title I, might be thought to allow such damages
in cases under Title I of the ADA as well. Id. Indeed,
Representative Sensenbrenner offered an amendment on
the last day of debate on the ADA that would have replaced
Title I’s cross-referencing language with express remedial
provisions permitting only injunctive relief and the award of
back pay. 136 Cong. Rec. H2599-01, H2612, 1990 WL
67606. In the ensuing debate, however, many other
members of Congress expressed the view succinctly
expressed by Representative Edwards, namely, that “the
heart of the Americans with Disabilities Act is to give the
same civil rights protections to persons with disabilities
that racial minorities and women have.” Id. at H2615
(statement of Rep. Edwards); see also, e.g., id. (statement of
Rep. Schroeder); id. at 2616 (statement of Rep. Glickman);
id. (statement of Rep. Fish); id. at 2618 (statement of Rep.
Bartlett); id. at 2620 (statement of Rep. Mazzoli). The
proposed amendment subsequently was defeated and
Congress approved the cross-referencing language on the
theory that persons discriminated against on the basis of a
disability should receive the same remedies as those
subject to discrimination on the basis of race or sex.
Although this legislative history does not reveal explicitly
Congress’s view of the courts’ role in defining the contours
of the rights and remedies under the ADA, when taken
together with Congress’s implicit acknowledgment of the
judicially created private Title VI right of action and failure
to define that action further, it supports the inference that
Congress intended to leave to the courts the task of
defining the contours of liability—including the existence of
a right of contribution—under Title VI, section 504 of the
Rehabilitation Act, and Title II of the ADA. Of course, in
turning to the question whether a right of contribution is
within the contours of the private section 504 and Title II
actions, we must not consider the relative efficiencies or
equities of the parties’ arguments, but rather must ask how
the Congresses that enacted the Rehabilitation Act and the
ADA would have addressed the issue had the private rights
of action under those acts been included as express
provisions. See Musick, 508 U.S. at 294, 113 S.Ct. at 2089-
90. Unlike the 1934 Congress whose actions in enacting
43
section 10(b) were considered in Musick, however, both
Congresses in this case clearly contemplated the existence
of some private right of action, even if they did intend to
leave further definition of that right to the courts. That no
right to contribution under Title VI had been recognized
when the Rehabilitation Act and Title II were enacted and
that Congress did not provide explicitly for such a right
suggests that Congress did not intend for such a right to
exist. We do not regard this evidence as conclusive,
however, but must weigh it along with the other
considerations that the Musick court identified.
4. Application of Musick Analysis
In holding that a right to contribution was consistent
with the overall structure of the 1934 act, the Musick Court
considered express liability provisions of the 1933 and
1934 acts and found that two of the eight express liability
provisions in the 1934 act were analogous to Rule 10b-5 in
structure, purpose, and intent. Because those provisions
expressly created a right to contribution, the Court held
that implying such a right in a Rule 10b-5 action was
consistent with the 1934 act. Id. at 295-97, 113 S.Ct. at
2090-91. The Court also found relevant the fact that most
courts of appeals had recognized a right to contribution in
Rule 10b-5 actions for more than 20 years. Id. at 297-98,
113 S.Ct. at 2091.
UMass and Delaware State argue that, in considering
analogous statutes, we need look no further than section
503 of the Rehabilitation Act and Title I of the ADA, which
prohibit discrimination in employment and which, because
their remedies are derived from Title VII of the Civil Rights
Act of 1964, do not, after Northwest Airlines, create a right
of contribution. Temple argues that the purpose of section
504 and Title II is not simply to prohibit discrimination but
also, unlike other civil rights laws such as section 503 and
Title I, to regulate recipients of federal funds and ensure
that government money is not spent on programs that
discriminate. Temple suggests that, because section 504
and Title II are examples of Spending Clause legislation, we
should look to contract law, not to other civil rights
44
statutes, in deciding whether to allow a right to
contribution.22 Temple Br. at 26-32.
In Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097(2002), the Supreme Court held that punitive damages are
not available under Title II and section 504. Relying on the
contract analogy, the Court stated that “[a] funding
recipient is generally on notice that it is subject not only to
those remedies explicitly provided in the relevant
legislation, but also to those remedies traditionally available
in suits for breach of contract.” Id. at 187, 122 S.Ct. at
2101. The Court explained its holding in Franklin that
compensatory damages are available under Title IX of the
Educational Amendments of 1972, although not expressly
provided, and its holding in Cannon that injunctive relief is
similarly available on the grounds that those remedies are
“forms of relief traditionally available in suits for breach of
contract.” Id., 122 S.Ct. at 2101. Punitive damages,
however, are not generally available for breach of contract,
and the Court, therefore, held that they should not be
available under Title II and section 504 either. Id. at 187-
88, 122 S.Ct. at 2102. But Temple argues that contribution
is different as it generally is available in suits for breach of
contract. See 12 Samuel Williston, Law of Contracts § 36.14
(4th ed. 1999).
The Court in Barnes stated that the contract law analogy
may apply in Spending Clause cases defining the scope of
damages remedies, deciding whether a damages remedy is
available at all, and “defining the scope of conduct for
22. In support of this contention, Temple cites Chemung Canal Trust Co.
v. Sovran Bank/Maryland, 939 F.2d 12, 15-16 (2d Cir. 1991), in which
the Court of Appeals for the Second Circuit held that a defendant in an
ERISA breach of fiduciary duty case had a right to contribution as a
matter of federal common law because trust law, on which ERISA was
based, traditionally allowed contribution. The court found its power to
recognize such a right in the Supreme Court’s unequivocal statements
that “ ‘courts are to develop a federal common law of rights and
obligations under ERISA-regulated plans.’ ” Id. at 16 (quoting Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954
(1989) (internal quotation omitted)). However, inasmuch as Title VI, the
Rehabilitation Act, and the ADA do not confer a similarly broad common
law power on the courts, Chemung is of little value to us in this case.
45
which funding recipients may be held liable for money
damages.” Id. at 186-87, 122 S.Ct. at 2101. The principle
supporting the analogy in each of these types of cases is
that in Spending Clause cases “ ‘in return for federal funds,
the [recipients] agree to comply with federally imposed
conditions.’ ” Id. at 186, 122 S.Ct. at 2100-01 (quoting
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17,
101 S.Ct. 1531, 1540 (1981) (alteration in original)). In
other words, the task for courts in such cases is to define
the “contractual” terms, that is, to hold recipients to the
terms of their bargain but not to impose conditions of
which the recipient could not fairly have been aware.
Although we may assume that a defendant in a
traditional common law breach of contract case would be
entitled to contribution, we share the sentiment expressed
by two Justices in the 5-4 Barnes majority, namely that
“the contract-law analogy may fail to give such helpfully
clear answers to other questions that may be raised by
actions for private recovery under Spending Clause
legislation . . . .” Id. at 191, 122 S.Ct. at 2103 (Souter, J.,
and O’Connor, J., concurring); see also id. at 186, 122
S.Ct. at 2101 (majority opinion) (“[W]e have been careful not
to imply that all contract-law rules apply to Spending
Clause legislation . . . .” (emphasis in original)). Unlike the
Court in Barnes and the cases cited therein, such as
Franklin and Pennhurst, we are being asked here to
formulate a right that belongs not to a member of the class
Congress sought to protect, but that instead benefits solely
a violator of the duties Congress created for the protection
of that class.23 This case, therefore, does not fit easily
within the line of cases relying on the “ ‘traditional
presumption in favor of any appropriate relief for violation
of a federal right’ ” in finding implied remedies. Id. at 185,
122 S.Ct. at 400 (quoting Franklin, 503 U.S. at 73, 112
S.Ct. at 1036) (emphasis in Barnes). Because Barnes used
the contract-law analogy to determine the scope of
23. It, of course, should be understood that we are not suggesting that
Temple violated anything. Rather, if Bowers is to prevail in this action,
he must carry the burden to establish that it did so. We simply refer to
Temple as though it is a violator because unless it is the contribution
issue evaporates.
46
“appropriate relief ” under Franklin, that analogy can be of
only limited use to us here, where the Franklin presumption
does not apply.
Thus, in looking for analogous provisions under Musick,
we look, as did the Musick Court, to other sections of the
legislation creating the cause of action sued on for
guidance, not to contract law. To do otherwise, we would
have to read Musick as conferring a broad common law
power on the federal courts to create a right of contribution
in cases involving an implied right of action as long as the
court could find support for such a right in any other
analogous area of the law. Musick, however, does not give
the federal courts such broad power. A court must look not
to any analogous area of the law, but rather to the intent
of Congress insofar as the court can distill that intent from
the structure and language of the legislation as a whole. In
this case we, therefore, look to the rest of the ADA and the
Rehabilitation Act for guidance.24
In particular, we look to other provisions of these
statutes that are “close in structure, purpose, and intent”
to the private right of action under Title II and section 504.
Id. at 295, 113 S.Ct. at 2090. In Musick, the Court found
that two sections of the 1934 act are close in structure,
24. Temple vigorously argues that we should not look to Title I of the
ADA or Title VII, on which Title I of the ADA is based, in deciding
whether a right to contribution is consistent with the statutory scheme
as a whole because the purposes behind the two sets of statutes are
different. Temple Br. at 27-28. We recognize that while Title VII is clearly
remedial civil rights legislation designed to protect individuals, Title VI
has the twin goals of protecting individuals and of regulating the use of
federal funds in public programs. See Cannon, 441 U.S. at 704, 99 S.Ct.
at 1961. Temple urges us to ignore Title VII and to focus instead on
whether a right to contribution is consistent with the purpose of Title VI
to regulate recipients of federal funds. Whatever the merits of Temple’s
argument that a right to contribution is consistent with that goal, we are
unwilling to ignore the twin goal of Title VI to protect individuals from
discrimination in public programs. Moreover, we must not ask whether
a right to contribution is desirable as a policy matter, but whether the
Congresses that enacted Title II and section 504 would have provided for
such a right if they had created a private right of action. Musick, 508
U.S. at 294, 113 S.Ct. at 2089-90. For both of these reasons, we turn for
guidance to Title I of the ADA and to Title VII.
47
purpose, and intent to the Rule 10b-5 action for two
reasons: (1) they target the precise dangers that are the
focus of section 10(b) and are motivated by the same intent
to deter fraud in the securities market and to ensure full
disclosure of material information; and (2) they impose
liability on defendants who stand in a position most similar
to 10b-5 defendants for the sake of assessing whether they
should be entitled to contribution. 508 U.S. at 295-96, 113
S.Ct. at 2090-91. Looking to the other liability provisions of
the Rehabilitation Act and the ADA, it is clear that none are
as close in structure, purpose, and intent to the private
section 504 and Title II actions as the two 1934 act
provisions used by the Court in Musick are to Rule 10b-5.
Yet, because those provisions closest in structure, purpose,
and intent to section 504 and Title II and the legislative
history and structure of the statutes do not suggest that
Congress would have created a right to contribution had it
created an explicit private right of action for violations of
either section 504 or Title II, we hold that there is no right
to contribution under either of those provisions.
Among the declared purposes of the Rehabilitation Act of
1973 was authorization of programs to develop and
implement comprehensive and continuing state plans for
meeting the need for providing vocational rehabilitation
services to disabled persons “and to provide such services
for the benefit of such individuals,” Rehabilitation Act of
1973, Pub. L. No. 93-112, § 2(1) (1973) (emphasis added);
to “initiate and expand services to groups of handicapped
individuals . . . who have been underserved in the past,” id.
§ 2(6); and to “promote and expand employment
opportunities in the public and private sectors for
handicapped individuals and to place such individuals in
employment,” id. § 2(8). The statement of purpose was
amended in 1978, simultaneously with the amendments
creating private rights of action by cross-reference to read:
“The purpose of this Act is to develop and implement,
through research, training, services, and the guarantee of
equal opportunity, comprehensive and coordinated
programs of vocational rehabilitation and independent
living.” Pub. L. No. 95-602, § 122(a)(1) (1978).
To further this purpose, Title V of the Rehabilitation Act
prohibits certain entities from discriminating against
48
persons with disabilities. Section 501 requires all executive
branch agencies and departments to submit affirmative
action plans for the hiring and advancement of disabled
persons and prohibits discrimination on the basis of
disability in federal employment. 29 U.S.C. § 791. Section
503 requires all federal contractors to take affirmative
action to employ and advance in employment qualified
persons with disabilities. Id. § 793. Finally, section 504
prohibits any program or activity receiving federal funds
from discriminating against persons with disabilities. Id.
§ 794. From 1973 to 1978, the federal courts generally
began to recognize a private right of action under section
504, but not under section 501, while the courts were split
on the question whether a private right of action existed
under section 503. See Smith v. United States Postal Serv.,
742 F.2d 257, 259 (6th Cir. 1984). In 1978, Congress
amended the act to create private remedies for violations of
sections 501 and 504 in order to clarify the confusion in
the lower courts. Id. Congress, however, did not create a
right of action under section 503 with the 1978
amendments, and every court of appeals facing the
question since has held that an implied right of action does
not exist under that provision. See 2 Americans With
Disabilities: Practice and Compliance Manual § 8:272
(2003) (compiling cases from every court of appeals).
Section 501 is, therefore, the only other liability provision
in the Rehabilitation Act that is even arguably similar to
section 504. While the analogy is not perfect, the two
sections share the basic goal of protecting persons with
disabilities from discrimination, much in the same way as
the statutes at issue in Musick shared the common goal of
deterring fraud and ensuring full disclosure of material
information. Furthermore, defendants in a section 501
action “stand in a position” similar to defendants in a
section 504 action in that the two sections impose direct
liability on defendants for their own acts as opposed to
derivative liability. See Musick, 508 U.S. at 296, 113 S.Ct.
at 2090. But section 501 does not provide for a right to
contribution, nor does any court appear to have recognized
a right to contribution in a section 501 action.25 Indeed,
25. Of course, the circumstances in which a court might be asked to
recognize such a right in a section 501 case are not clear, inasmuch as
the United States is likely to be the only defendant in the case.
49
there is no provision of the Rehabilitation Act that appears
to contemplate the existence of a right to contribution.
More importantly, section 501 rights and remedies are
derived from Title VII, which, under Northwest Airlines,
does not create a right of contribution. Thus, inasmuch as
Congress took no action in 1978, when it created private
rights of action by cross-reference under sections 501 and
504, to create a right to contribution, and because no such
right explicitly or implicitly exists in section 501 or any
other section of the Rehabilitation Act, we are unable to
infer that Congress in 1978 would have created such a
right had it crafted a more explicit private remedial scheme
for violations of section 504. Thus, we reach our conclusion
that there is no right to contribution under section 504 of
the Rehabilitation Act.
Similarly, nothing in the ADA counsels in favor of
recognizing a right to contribution for violations of Title II.
The ADA’s goals are familiar: (1) to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities; (2) to
provide clear, strong, consistent, enforceable standards
addressing discrimination against individuals with
disabilities; (3) to ensure that the federal government plays
a central role in enforcing the standards established on
behalf of individuals with disabilities; and (4) to invoke the
sweep of congressional authority, including the power to
enforce the Fourteenth Amendment and to regulate
commerce, in order to address the major areas of
discrimination faced day-to-day by people with disabilities.
42 U.S.C. § 12101(b). Title I of the ADA prohibits
discrimination in employment and provides that rights and
remedies available under Title VII of the Civil Rights Act of
1964 are available under Title I. Id. § 12117. Title II
prohibits discrimination by a “public entity.” Id. § 12132.
Rights and remedies available under section 504 of the
Rehabilitation Act are available under Title II. Id. § 12133.
Finally, Title III prohibits discrimination in public
accommodations. Id. § 12182. Rights and remedies
available under Title II of the Civil Rights Act of 1964 are
available under Title III. Id. § 12188.
50
Although all three titles have similar purposes, that is, to
eliminate discrimination in the sphere each one covers,
Title I is more analogous to Title II than is Title III because
Title I defendants stand in a position similar to Title II
defendants for reasons comparable to those we discussed
above with respect to defendants under sections 501 and
504 of the Rehabilitation Act. On the other hand, Title III
defendants cannot be liable for money damages. Id.
§ 12188(a); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.
2002). Title I does not provide for a right to contribution
nor does any court appear to have implied such a right.
Furthermore, under Northwest Airlines, contribution is not
available under Title VII. Even were we to consider Title III
as another possibly analogous provision, neither Title III
nor Title II of the Civil Rights Act of 1964 appears ever to
have been held to create a right to contribution. Thus, we
reach our conclusion that there is no right to contribution
under Title II of the ADA. We, therefore, will reverse the
district court’s orders of November 7, 2001, and March 6,
2002, appealed at No. 02-3236, with respect to UMass and
Delaware and remand the matter to the district court to
dismiss the contribution claims against them under both
section 504 and Title II.
We close with a final observation. In this case, we hold
that Temple cannot have a right of contribution from
UMass or Delaware State and, as Bowers has not sued
them directly and there are no other claims pending against
them, they will be dismissed from this action. But at this
time we cannot be certain as to how the proceedings will go
forward (beyond the case being dismissed as to all three
third-party defendants) and we, therefore, cannot know
whether Bowers will recover judgments against the
defendants and, if so, whether the damages recovered will
be duplicative and, indeed, how the district court will
submit the case to the jury or, in the absence of a jury trial,
itself calculate damages if Bowers establishes that the
defendants are liable. Thus, we want to make clear that we
do not intend to bar a party satisfying a judgment from
seeking reimbursement in part from other judgment
debtors. It may be that the district court will avoid the
possibility that recovery against defendants will overlap by
separating Bowers’s case against the various defendants so
51
that damages against a liable defendant are ascertained
individually. But we cannot be sure that this can or will be
done, though surely it would be desirable to do so. In any
event, we do not intend by this opinion to preclude the
district court from entertaining arguments and granting
relief to a party satisfying a judgment for which more than
one defendant is responsible by allowing it to make a
recovery from other defendants on some principle provided
it is consistent with this opinion.
IV. CONCLUSION
For the foregoing reasons we will dismiss the appeals of
Iowa at No. 01-4492, Memphis at No. 01-4226, and UMass
at No. 02-1789. We will reverse the orders of the district
court of November 7, 2001, and March 6, 2002, in No. 02-
3236 insofar as the court finds that Temple has alleged a
valid claim for contribution against the third-party
defendants UMass and Delaware State. We will remand the
case to the district court for further proceedings to carry
out the directions in this opinion. In particular, Temple
should refile its notice of dismissal as to Memphis and the
district court shall dismiss the third-party complaints
against UMass and Delaware State. Costs will be taxed in
favor of UMass and Delaware State against Temple in No.
02-3236 but not in No. 02-1789. As between Iowa and
Bowers costs shall be taxed in favor of Bowers. As between
Memphis and Temple, no costs shall be taxed on this
appeal at this time but Memphis may move in the district
court for costs and counsel fees.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit