Maxwell Kadel v. N.C. State Health Plan ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1409
MAXWELL KADEL; JASON FLECK; CONNOR THONEN-FLECK, by his next
friends and parents; JULIA MCKEOWN; MICHAEL D. BUNTING, JR.; C.B., by
his next friends and parents; SAM SILVAINE,
Plaintiffs – Appellees,
v.
NORTH CAROLINA STATE HEALTH PLAN FOR TEACHERS AND STATE
EMPLOYEES,
Defendant – Appellant,
and,
DALE FOLWELL, in his official capacity as State Treasurer of North Carolina;
UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL; NORTH
CAROLINA STATE UNIVERSITY; DEE JONES, in her official capacity as
Executive Administrator of the North Carolina State Health Plan for Teachers and
State Employees; UNIVERSITY OF NORTH CAROLINA AT GREENSBORO.
Defendants.
–––––––––––––––––––––––––––––––––
STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF DELAWARE;
STATE OF HAWAII; STATE OF ILLINOIS; STATE OF MAINE;
COMMONWEALTH OF MASSACHUSETTS; STATE OF MINNESOTA;
STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO;
STATE OF NEW YORK; STATE OF OREGON; STATE OF RHODE ISLAND;
STATE OF VERMONT; STATE OF WASHINGTON; STATE OF WISCONSIN;
DISTRICT OF COLUMBIA; EQUALITY NORTH CAROLINA;
CLEARINGHOUSE ON WOMEN’S ISSUES; FEMINIST MAJORITY
FOUNDATION; GENDER EQUALITY LAW CENTER; HARVARD LAW
SCHOOL LGBTQ+ADVOCACY CLINIC; LEGAL VOICE; NARAL PRO-
CHOICE AMERICA; NATIONAL CENTER FOR LESBIAN RIGHTS;
NATIONAL HEALTH LAW PROGRAM; NATIONAL WOMEN’S LAW
CENTER; NORTH CAROLINA AIDS ACTION NETWORK; PLANNED
PARENTHOOD SOUTH ATLANTIC; WOMEN'S BAR ASSOCIATION OF THE
DISTRICT OF COLUMBIA; WOMEN’S BAR ASSOCIATION OF THE STATE
OF NEW YORK,
Amici Supporting Appellees.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:19-cv-00272-LCB-LPA)
Argued: March 11, 2021 Decided: September 1, 2021
Amended: December 2, 2021
Before GREGORY, Chief Judge, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Diaz
concurred in part. Judge Diaz wrote a concurring opinion and Judge Agee wrote a dissenting
opinion.
ARGUED: John Guyton Knepper, LAW OFFICE OF JOHN G. KNEPPER, LLC,
Cheyenne, Wyoming, for Appellant. Omar Francisco Gonzalez-Pagan, LAMBDA
LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, for Appellees.
ON BRIEF: Mark A. Jones, Kevin G. Williams, BELL, DAVIS & PITT, PA,
Winston-Salem, North Carolina, for Appellant. Samuel R. Bagenstos, Ann Arbor,
Michigan; Tara L. Borelli, Atlanta, Georgia, Carl S. Charles, LAMBDA LEGAL
DEFENSE AND EDUCATION FUNC, INC., New York, New York; Amy E. Richardson,
Lauren E. Snyder, HARRIS, WILTSHIRE & GRANNIS LLP, Washington, D.C.;
David P. Brown, TRANSGENDER LEGAL DEFENSE & EDUCATION FUND, INC.,
New York, New York, for Appellees. Xavier Becerra, Attorney General, Renu R. George,
Senior Assistant Attorney General, Kathleen Boergers, Supervising Deputy Attorney
General, Nicole Ries Fox, Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF CALIFORNIA, San Diego, California, for Amicus State of California.
Philip J. Weiser, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
COLORADO, Denver, Colorado, for Amicus State of Colorado. Kathleen Jennings,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF DELAWARE,
2
Wilmington, Delaware, for Amicus State of Delaware. Clare E. Connors, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF HAWAII, Honolulu, Hawaii, for
Amicus State of Hawaii. Kwame Raoul, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus State of Illinois.
Aaron M. Frey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MAINE, Augusta, Maine, for Amicus State of Maine. Maura Healy, Attorney General,
OFFICE OF THE ATTORNEY GENERAL FOR THE COMMONWEALTH OF
MASSACHUSETTS, Boston, Massachusetts, for Amicus Commonwealth of
Massachusetts. Keith Ellison, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MINNESOTA, St. Paul, Minnesota, for Amicus State of Minnesota.
Aaron D. Ford, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
NEVADA, Carson City, Nevada, for Amicus State of Nevada. Gurbir S. Grewal, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, Trenton, New
Jersey, for Amicus State of New Jersey. Hector Balderas, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF NEW MEXICO, Santa Fe, New Mexico, for Amicus
State of New Mexico. Letitia James, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF NEW YORK, New York, New York, for Amicus State of New York.
Ellen F. Rosenblum, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
OREGON, Salem, Oregon, for Amicus State of Oregon. Peter F. Neronha, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF RHODE ISLAND, Providence,
Rhode Island, for Amicus State of Rhode Island. Thomas J. Donovan, Jr., Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier,
Vermont, for Amicus State of Vermont. Robert W. Ferguson, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia, Washington, for
Amicus State of Washington. Joshua L. Kaul, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF WISCONSIN, Madison, Wisconsin, for Amicus State of
Wisconsin. Karl A. Racine, Attorney General, OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Amicus
District of Columbia. Ames Simmons, EQUALITY NORTH CAROLINA, Raleigh, North
Carolina; Michael W. Weaver, Chicago, Illinois, Michael S. Stanek, Sarah P. Hogarth,
Gilbert T. Smolenski, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for
Amicus Equality North Carolina. Kevin Barry, QUINNIPIAC UNIVERSITY SCHOOL
OF LAW LEGAL CLINIC, Hamden, Connecticut; Kevin Costello, Maryanne Tomazic,
Center for Health Law & Policy Innovation, HARVARD LAW SCHOOL, Cambridge,
Massachusetts, for Amici Nonprofit Civil Rights, Advocacy, and Public Interest
Organizations.
3
GREGORY, Chief Judge:
In March 2019, several enrollees in the North Carolina State Health Plan for
Teachers and State Employees (NCSHP) filed a three-count complaint against the State
Health Plan and other State defendants. Plaintiffs allege that NCSHP discriminates against
its transgender enrollees by categorically denying coverage for gender dysphoria
treatments like counseling, hormone therapy, and surgical care. This, Plaintiffs argue,
violates § 1557 of the Patient Protection and Affordable Care Act. NCSHP filed a motion
to dismiss, asserting that it was entitled to sovereign immunity under the Eleventh
Amendment. The district court denied the motion, holding that NCSHP waived its
immunity against this claim by accepting federal financial assistance. We affirm.
I.
North Carolina provides its employees and their dependents with health care
through a self-funded plan, the North Carolina State Health Plan. NCSHP covers nearly
three-quarters of a million teachers, state employees, retirees, current and former
lawmakers, state university personnel, community college personnel, hospital staff
members, and their dependents. Directed by North Carolina State Treasurer Dale Folwell,
NCSHP has the power to “determine, define, adopt, and remove health care benefits and
exclusions.” J.A. 23. Relevant here, NCSHP has adopted an exclusion that denies
coverage to all forms of gender-confirming health care—important and sometimes
lifesaving care sought by state employees across North Carolina, including Plaintiffs.
4
A.
Maxwell Kadel, Jason Fleck, Connor Thonen-Fleck, Julia McKeown, Sam Silvaine,
C.B., and Michael D. Bunting, Jr. filed this suit against NCSHP for declaratory and
injunctive relief, as well as money damages. 1 Plaintiffs are NCSHP enrollees. They are
also transgender or serve as a legal guardian to a transgender dependent.
People identify as transgender when their gender identity—their inherent and deeply
felt sense of their gender—does not align with the sex they were assigned at birth. We
have previously noted what should by now be uncontroversial: “Just like being cisgender,
being transgender is natural and is not a choice.” Grimm v. Gloucester County Sch. Bd.,
972 F.3d 586, 594 (4th Cir. 2020), cert. denied, No. 20-1163, 2021 WL 2637992, at *1
(June 28, 2021). Nor is someone’s transgender status a “psychiatric condition” that implies
any “impairment in judgment, stability, reliability, or general social or vocational
capabilities.” Id.For some who identify as transgender, the “incongruence between gender identity
and the body’s other sex characteristics can result in gender dysphoria.” J.A. 26. Gender
dysphoria is a medical condition recognized in the DSM-V that often manifests as “a
feeling of clinically significant stress and discomfort born out of experiencing that
something is fundamentally wrong.” Id. Left untreated, gender dysphoria “often
intensifies,” leading to “severe anxiety, depression, and suicidal ideation or suicide.” Id.1
Connor Thonen-Fleck is a plaintiff by his next friends and parents, Jason Fleck and
Alexis Thonen; C.B. is a plaintiff by his next friends and parents, Michael D. Bunting, Jr. and
Shelley K. Bunting.
5
The World Professional Association for Transgender Health has formulated
STANDARDS OF CARE that have been adopted by health organizations across the country.
These standards recognize that “[t]he ability to live in a manner consistent with one’s
gender identity is critical to the health and well-being of transgender individuals and is a
key aspect in the treatment of gender dysphoria.” Id. What it means to “live in a manner
consistent with one’s gender identity” varies from person to person. For transgender
individuals, it “typically include[s] social, legal, and medical transition.” J.A. 27. The
medical component, in particular, can be “a critical part of transitioning,” as it “includes
treatments that bring the sex-specific characteristics of a transgender individual’s body into
alignment with their gender identity.” Id. Medical transition may require counseling,
hormone replacement therapy, or surgical care. These treatments “are not ‘cosmetic,’
‘elective,’ or ‘experimental.’” J.A. 29. Rather, they are safe, effective, and often medically
necessary.
NCSHP offers three health care plans to eligible state employees. Each plan
purports to cover “medically necessary pharmacy benefits, mental health benefits, and
medical care.” J.A. 30. But since 2018, every plan has excluded coverage for gender-
confirming health care. Id.NCSHP’s exclusion marks a departure from the coverage provided in its 2017
Health Plans. Before NCSHP announced its 2017 plans, its consulting firm issued a report
on § 1557 of the Affordable Care Act and how it applied to NCSHP. Section 1557 prohibits
“any health program or activity” that receives federal funds from discriminating against
individuals on any ground prohibited by various federal statutes, including Title IX. 42
6
U.S.C. § 18116(a). The 2016 report concluded that § 1557 likely applied to NCSHP, and
that the existing exclusion on gender-confirming case risked “millions of dollars in federal
funding” and “discrimination lawsuits for non-compliance.” J.A. 31–32. These potential
costs, the report noted, far exceeded the cost of providing gender-confirming care—an
estimated 0.011% –0.027% of NCSHP’s $3.2 billion of premiums.
Heeding this guidance, the State Treasurer, joined by a majority of NCSHP’s Board
of Trustees, voted to remove the exclusion for the 2017 Health Plans. The 2017 Plans did
not mandate coverage for all gender-confirming care. They simply allowed claims for
gender-confirming care to be reviewed under the same criteria and in the same manner as
claims for any other medical, mental health, or pharmacy benefits.
But in 2017, a new Treasurer took office. He ensured that NCSHP reinstated its
exclusion of gender-confirming care. He then pledged that until the courts, legislature, or
voters required him “to spend taxpayers’ money on sex change operations,” he would not
remove the exclusion. J.A. 33 (internal quotation marks omitted).
B.
Plaintiffs filed suit against NCSHP, among others, alleging that the exclusion of
gender-confirming health services violated § 1557 of the Affordable Care Act. They
sought both money damages and equitable relief. NCSHP then filed a motion to dismiss,
arguing it was immune from suit under the Eleventh Amendment. The district court denied
the motion. Under the Civil Rights Remedies Equalization Act (CRREA), “[a] State shall
not be immune under the Eleventh Amendment of the Constitution of the United States
from suit in Federal court for a violation of . . . any other Federal Statute prohibiting
7
discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7. The
district court held that § 1557 of the Affordable Care Act qualified as a “Federal statute
prohibiting discrimination,” and NCSHP therefore waived its sovereign immunity by
accepting federal funds.
NCSHP timely appealed.
II.
On appeal from a Rule 12(b)(1) motion to dismiss, we review a district court’s
factual findings relating to jurisdiction for clear error and the resulting legal conclusion de
novo. Williams v. Big Picture Loans, 929 F.3d 170, 176 (4th Cir. 2019).
III.
At its core, the Eleventh Amendment bars federal courts from exercising jurisdiction
over suits against nonconsenting states or state entities. Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 54 (1996) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1793)). This protection
not only prevents federal court judgments, but also “the indignity of subjecting a State to
the coercive process of judicial tribunals at the instance of private parties.” P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). The Eleventh
Amendment does not, however, prevent a state from “choos[ing] to waive its immunity in
federal court.” Sossamon v. Texas, 563 U.S. 277, 284 (2011) (citing Clark v. Barnard, 108
U.S. 436, 447–48 (1883)). Nor does it prohibit the federal government from conditioning
8
the availability of federal funds upon a state’s waiver of its sovereign immunity. 2 Arlington
Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (explaining that
Congress has “broad power to set the terms on which it disburses money to the States”);
but see South Dakota v. Dole, 483 U.S. 203, 207–11 (1987) (placing restrictions on
Congress’s spending power).
A state’s acceptance of conditioned funds “reflects an exercise, rather than a
limitation of, State sovereignty.” Madison v. Virginia, 474 F.3d 118, 129 (4th Cir. 2006).
Indeed, the very reason the Spending Clause is a “permissible method of encouraging a
State to conform to federal policy choices” is because it leaves states with “the ultimate
decision of whether to conform.” Id. at 124 (quoting New York v. United States, 505 U.S.
144, 168 (1992)) (internal quotation marks omitted).
That said, the “test for determining whether a State has waived its immunity from
federal-court jurisdiction is a stringent one.” Sossamon, 563 U.S. at 284 (quoting Coll.
Savings Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675 (1999))
(internal quotation marks omitted). “[T]here can be no consent by implication or by use
of ambiguous language.” Library of Cong. v. Shaw, 478 U.S. 310, 318 (1986). Rather, a
State’s consent to suit must be “unequivocally expressed” in the text of the relevant statute.
Id. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). This
2
Congress may also, in some instances, abrogate a state’s sovereign immunity.
Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 377–78 (2006); Allen v. Cooper, 140 S. Ct.
994, 1000, 1003–04 (2020). Here, however, neither party argues that either ACA or
CRREA abrogated NCSHP’s immunity.
9
“clear declaration” requirement allows us to be “certain that the State in fact consents to
suit.” Id. (quoting Coll. Savings Bank, 527 U.S. at 680).
Upon finding that Congress clearly conditioned federal funds upon a state’s waiver
of sovereign immunity, courts must then determine the waiver’s scope. We “strictly
construe[]” the scope of a sovereign immunity waiver “in favor of the sovereign.” Lane v.
Peña, 518 U.S. 187, 192 (1996). “[F]or example, a State’s consent to suit in its own courts
is not a waiver of its immunity from suit in federal court.” Sossamon, 563 U.S. at 285
(citing Coll. Savings Bank, 527 U.S. at 676). And a waiver of sovereign immunity to other
types of relief does not waive immunity against monetary damages. Id. (citing Lane, 518
U.S. at 192).
NCSHP argued before the district court that § 1557 of the Affordable Care Act—
whether read in isolation or in conjunction with CRREA—did not unambiguously
condition the receipt of federal funds upon NCSHP’s waiver of sovereign immunity. The
district court agreed only in part. It held that § 1557, standing alone, did not clearly
condition federal funds on a state’s waiver of sovereign immunity. J.A. 230. But when
read in conjunction with CRREA, § 1557 placed state officials on clear notice that
acceptance of federal funds amounted to a waiver of sovereign immunity against claims of
discrimination arising out of that provision. J.A. 232–34.
We affirm the district court and hold that, when read alongside CRREA, § 1557
clearly conditions the receipt of federal funds upon NCSHP’s waiver of sovereign
immunity against suits for money damages. And by accepting federal financial assistance,
NCSHP effectuated that waiver. In my view, however, § 1557 also stands as a clear and
10
unequivocal sovereign immunity waiver when standing alone. I write separately in Part
III.A. to express that view.
A.
Section 1557 of the Affordable Care Act forbids “any health program or activity”
receiving federal financial assistance from “subject[ing]” an individual to discrimination
on a “ground prohibited under title VI of the Civil Rights Act of 1964 [], title IX of the
Education Amendments of 1972 [], the Age Discrimination Act of 1975 [], or section 794
of Title 2 . . . .” 42 U.S.C. § 18116(a). To remedy § 1557 violations, “[t]he enforcement
mechanisms provided for and available under such title VI, title IX, section 794, or such
Age Discrimination Act shall apply.” Id. Most plainly understood, this provision
conditions a health program or activity’s receipt of federal funds upon its consent to be
subject to “the enforcement mechanisms provided for and available under” the statutes
listed in § 1557. NCSHP therefore waived its sovereign immunity if (1) it received federal
financial assistance, (2) it is a health program or activity, and (3) suits for money damages
are an “enforcement mechanism” that is “provided for and available under” Title VI, Title
IX, 29 U.S.C. § 794, or the Age Discrimination Act.
It is undisputed that NCSHP receives federal funds. But, for the first time on appeal,
NCSHP argues that it is not a health program or activity. “We have repeatedly held that
issues raised for the first time on appeal generally will not be considered.” Karpel v. Inova
Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (citing Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993); Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313, 318 (4th Cir.
1988)). Exceptions to this rule exist “only in very limited circumstances, such as where
11
refusal to consider the newly-raised issue would be plain error or would result in a
fundamental miscarriage of justice.” Id. (quoting Muth, 1 F.3d at 250).
NCSHP does not argue that exceptional circumstances excuse its waiver. Rather,
NCSHP insists that by “rais[ing] an immunity-based argument from [the] suit’s inception,”
it preserved the question of whether it qualifies as a medical program or activity. Reply
Br. at 11, ECF No. 45. But this stretches preservation beyond its intended utility. We
require preservation to ensure that district courts “be fairly put on notice as to the substance
of [an] issue” before resolving it in the first instance. Nelson v. Adams USA, Inc., 529 U.S.
460, 469 (2000). This calls for parties to “do more than raise a non-specific objection or
claim.” Wards Corner Beauty Acad. v. Nat’l Accrediting Comm’n of Career Arts & Scis.,
922 F.3d 568, 578 (4th Cir. 2019). NCSHP’s invocation of “an immunity-based argument”
did not place the district court on notice that NCSHP challenged its status as a medical
program or activity. Given NCSHP’s silence on this issue below, the district court had no
reason to understand it as anything but undisputed. We too take that view.
This leaves us with the question of whether suits for money damages are an
“enforcement mechanism provided for and available under” Title VI, Title IX, 29 U.S.C.
§ 794, or the Age Discrimination Act. There is no question that a plaintiff may enforce
Title IX through a claim for money damages. But NCSHP contends that § 1557 did not
incorporate this remedy because (1) a sovereign immunity waiver is not an “enforcement
mechanism,” and (2) even if it were, the immunity waiver that permits Title IX damages
claims is not “available under” Title IX itself. We reject both efforts to introduce ambiguity
into a statute where it would not otherwise exist.
12
i.
NCSHP argues that Title IX has two enforcement mechanisms: the administrative
procedure set forth in 20 U.S.C. § 1682 and an implied private right of action. Sovereign
immunity, by contrast, exists as “an independent barrier to the court’s jurisdiction over a
claim made by a specific plaintiff.” Reply Br. at 5. But simply stating that sovereign
immunity is “independent” of a law’s enforcement mechanism does not make it so. A
“mechanism” is not one thing, but “a process, technique, or system for achieving a result.”
Mechanism, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/mechanism
(saved as ECF opinion attachment). It follows that an “enforcement mechanism” is a
process, technique, or system for “compelling observance of or compliance with a law, rule,
or obligation.” See Enforcement, MERRIAM-WEBSTER, http://www.merriam-
webster.com/dictionary/enforcement (saved as ECF opinion attachment); see also Schmitt v.
Kaiser Found. Health Plan of Wash., 965 F.3d 945, 953 (9th Cir. 2020) (finding that, at
minimum, “enforcement mechanism” refers to “the process for compelling compliance with
a substantive right”); Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 239 (6th Cir.
2019) (“The phrase ‘enforcement mechanism’ refers to the process for compelling
compliance with a substantive right . . . .”).
The existence of an absolute immunity, then, is not independent of a statute’s
enforcement mechanism. Rather, an enforcement mechanism varies in scope depending
on who can be charged with violating a given law. Sovereign immunity narrows the scope
of permissible enforcement; a sovereign immunity waiver broadens it. So, while a
13
sovereign immunity waiver is not, by itself, an “enforcement mechanism,” it is an
inseparable component of that broader process.
ii.
NCSHP next argues that the sovereign immunity waiver that allows Title IX actions
against state defendants is not “available under” Title IX itself. Rather, it is available under
§ 1003 of CRREA—a separate provision, enacted at a separate time, under a separate title
of the United States Code.
It is true that CRREA codifies the sovereign immunity waiver that permits Title IX
plaintiffs to sue states for money damages. Congress enacted CRREA in response to
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246–47 (1985). In Atascadero, the
Supreme Court held that the Rehabilitation Act failed to clearly condition the receipt of
federal funds upon a state’s immunity waiver. 473 U.S. at 246–47. At the time, many civil
rights statutes used the same waiver language that the Supreme Court found lacking in the
Rehabilitation Act. To remedy the problem identified in Atascadero, CRREA codified
what is now the standard for unequivocal sovereign immunity waivers. Lane, 518 U.S. at
198 (“By enacting § 1003 [of CRREA], Congress sought to provide the sort of unequivocal
waiver that our precedents demand.”). It mandates that states receiving federal financial
assistance “shall not be immune under the Eleventh Amendment . . . from suit in Federal
court” for discrimination prohibited by various federal statutory provisions—including
Title IX. 42 U.S.C. § 2000d-7(a)(1). Moreover, it provides remedies for those violations
“to the same extent as such remedies are available for such a violation in the suit against
any public or private entity other than a State.” 42 U.S.C. § 2000d-7(a)(2).
14
Starting from this premise, NCSHP contends that a sovereign immunity waiver is
“available under” CRREA, not Title IX, because “under” imposes a physical requirement,
“specif[ying] where to look to find out” what remedies are “available.” Opening Br. at 17,
ECF No. 27. NCSHP insists that this definition is the only way to avoid redundancy and
honor the principle that we “give effect, if possible, to every clause and word of a statute.”
Advoc. Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017). Any other,
NCSHP argues, would give “provided for” and “available under” the same meaning. This
is where I disagree. NCSHP’s proposed definition places the statute in greater danger of
redundancy, not less.
Recall, § 1557 incorporates the enforcement mechanisms that are “provided for and
available under” Title IX. The phrase “provided for” identifies the source of a qualifying
enforcement mechanism under § 1557. See Provide for, MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/provide%20for (“to supply what is needed
for (something or someone)”); (saved as ECF opinion attachment). If “available under”
imposes a location requirement as NCSHP suggests, then it too identifies where an
enforcement mechanism must find its roots, just in a narrower sense. Using NCSHP’s
definition, I struggle to see how an enforcement mechanism could ever be “available
under” a particular title of the United States Code without also being “provided for” by that
statute. To render “provided for” without meaning would imbue § 1557 with the very flaw
that the canon against surplusage seeks to avoid. See Redundancy, MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/redundancy (“the state of being not or no longer
needed or useful”) (saved as ECF opinion attachment).
15
Thankfully, textualism does not compel this result. As the Supreme Court has
recognized, “[t]he word ‘under’ has many dictionary definitions and must draw its meaning
from context.” Ardestani v. I.N.S., 502 U.S. 129, 135 (1991). In some contexts, “under”
may refer to a location—“extending or directly below.” In others, it indicates what
something is “controlled, managed, or governed by,” i.e., “as provided for by the rules of”
or “in accordance with.” Under, MERRIAM-WEBSTER, http://www.merriam-
webster.com/dictionary/under (saved as ECF opinion attachment). “Under” can also
“express grouping or classification.” Id. Read most naturally, “available under” asks not
where an enforcement mechanism can be found, but whether the use of an enforcement
mechanism is permitted by or consistent with one of the statutes enumerated in § 1557. 3
This question is distinct from whether an enforcement mechanism is “provided for” by a
particular statute. Put simply, “provided for” identifies the source of a qualifying
enforcement mechanism, while “available under” identifies the mechanism’s scope. And
as explained above, the sovereign immunity waiver CRREA contains readily falls within
the scope of Title IX’s enforcement mechanism.
NCSHP argues that the “careful textualist distinction” required to identify the
correct meaning of “available under” serves as “evidence that Congress has not manifested
3
Contrary to what NCSHP argues, the Supreme Court gave “under” a similar
meaning in Ardestani, 502 U.S. at 135. Ardestani held that deportation proceedings were
not adjudications “under section 554 of [Title 5]” because they were not “subject to or
governed by” that provision. Id. (internal quotation marks omitted). The Immigration and
Nationality Act provides the “sole and exclusive procedure for determining []
deportability,” so deportation proceedings fall outside the scope of what § 554 can
permissibly govern. Id. at 134 (quoting 8 U.S.C. § 1252(b)). But unlike the INA, which
operates unaided by § 554 of the APA, Title IX and CRREA necessarily work in tandem.
16
a clear intent to require each State’s consent to waive its constitutional immunity.” Reply
Br. at 8 (internal quotation marks and modifications omitted). I disagree. To label a phrase
ambiguous every time it contains words that have multiple meanings would call into
question nearly every provision in the United States Code. In statutory interpretation, as
in daily life, we understand words with multiple meanings to bear the most natural one,
according to context. When interpreting statutes, we have an additional set of tools to
discern meaning from a range of alternatives: the canons of construction. The only
definition of “available under” that NCSHP offers is one that, without reason, violates those
canons. Parties cannot inject ambiguity into a statute by simply rebuffing established
principles of statutory interpretation.
Nor does the absence of certain magic words introduce ambiguity into an otherwise
clear provision. The late Justice Scalia provided the critical fifth vote in Dellmuth v. Muth,
491 U.S. 223, 233 (1989), a case upon which the dissent heavily relies. In a one-sentence
concurrence, he conditioned his vote upon “the understanding that [the majority’s]
reasoning [did] not preclude congressional elimination of sovereign immunity in statutory
text . . . without explicit reference to state sovereign immunity or the Eleventh
Amendment.” Id. (Scalia, J., concurring); contra Diss. Op. at 69. A provision can be clear
without being talismanic.
The enforcement mechanism provided for and available under Title IX is one that
permits states receiving federal financial assistance to be haled into court for money
damages. And this is the enforcement mechanism that § 1557 incorporates by reference.
17
Even when read on its own, § 1557 plainly conditions the receipt of federal funds on
NCSHP’s waiver of sovereign immunity.
B.
Were there any doubt about whether § 1557 conditioned the receipt of federal funds
upon states’ waiver of sovereign immunity against suits for money damages, it is remedied
by reading the provision alongside CRREA’s residual clause. As discussed above, CRREA
provides:
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation of
section 504 of the Rehabilitation Act of 1973, title IX of the Education
Amendments of 1972, the Age Discrimination Act of 1975, title VI of the
Civil Rights Act of 1964, or the provisions of any other Federal statute
prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7. Plaintiffs argue, and the district court held, that § 1557 is a
“provision[] of any other Federal statute prohibiting discrimination,” and thus falls within
CRREA’s residual clause. Neither this Court nor any of our sister circuits have addressed
the relationship between CRREA and § 1557. But each district court confronted with this
issue has, so far, reached same conclusion as the court below. Fain v. Crouch, No. 3:20-
0740, 2021 WL 2004793, at *3 (May 19, 2021); Boyden v. Conlin, 341 F. Supp. 3d 979,
998–99 (W.D. Wis. 2018); Esparza v. Univ. Med. Ctr. Mgmt. Corp., No. 17-4803, 2017
WL 4791185, at *5–8 (E.D. La. Oct. 24, 2017); see also Concepcion v. Cal. Dep’t of Corr.
& Rehab., No. 1:18-cv-01743-NONE-JLT(PC), 2021 WL 1516401, at *11 (E.D. Cal. Apr.
16, 2021).
18
In reaching its conclusion, the district court asked two questions: (1) whether § 1557
was a provision of a federal statute that prohibited discrimination, and (2) whether § 1557
was “sufficiently similar” to the statutes that CRREA specifically listed. Kadel v. Folwell,
446 F. Supp. 3d 1, 15 (M.D.N.C.) (2020) (citing Madison, 474 F.3d 118). It answered both
questions in the affirmative, finding that “[l]ike the four statutes named in CRREA, Section
1557 is a nondiscrimination provision which is directly aimed at recipients of federal
funding.” Id. Indeed, after comparing § 1557 to Title VI, Title IX, the Age Discrimination
Act, and § 504 of the Rehabilitation Act, the court remarked that it would be “hard to see
how Section 1557 could be any more ‘like the statutes expressly listed’ [in CRREA].” Id.
NCSHP contends that this was in error. Specifically, it argues that Congress could
not have intended CRREA’s residual clause to cover § 1557, and that the “sufficiently
similar” inquiry improperly substitutes the judicial for the legislative branch of
government. Opening Br. at 22–29. Both arguments are unpersuasive.
i.
As a preliminary matter, NCSHP is wrong to suggest that § 1557 cannot fall within
CRREA’s residual clause unless Congress specifically contemplated § 1557 at the time
CRREA was enacted. Congressional intent notwithstanding, we have long assumed that
“Congress says in a statute what it means and means in a statute what it says there.”
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000). To
that end, “when the statute’s language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—is to enforce it according to its
terms.” Id. (internal quotation marks omitted). Here, CRREA covers four enumerated
19
statutes along with “the provisions of any other Federal statute prohibiting discrimination
by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7. NCSHP does not
argue the residual clause is susceptible to multiple interpretations. Rather, it seems to argue
that CRREA is ambiguous simply by virtue of its breadth. Opening Br. at 24–29. But
“[b]road general language is not necessarily ambiguous when congressional objectives
require broad terms.” Cf. Diamond v. Chakrabarty, 477 U.S. 303, 315 (1980) (interpreting
“any new and useful process, machine, manufacture, or composition of matter” in 35
U.S.C. § 101). CRREA’s origin story, explained above, indicates that broad terms were
precisely what congressional objectives required.
Moreover, we do not view sovereign immunity waivers through the lens of what
Congress intended at the time of enactment, but “from the perspective of a state official
who is engaged in the process of deciding whether the State should accept [federal] funds
and the obligations that go with those funds.” Murphy, 548 U.S. at 296. From that
perspective, CRREA “furnishes clear notice” to state officials that its sovereign immunity
waiver encompasses the provisions of “any” federal statute that prohibits discrimination
by recipients of federal funds. See id. The ACA is a federal statute that prohibits
discrimination, and § 1557 is a provision contained therein. On top of this objective notice
provided by statute, the record also indicates that NCSHP was subjectively aware that it
waived its sovereign immunity against § 1557 suits by accepting federal funds. J.A. 51–
53; see also Br. for Equality North Carolina as Amicus Curiae Supporting Appellees 5–23,
ECF No. 39.
20
Still, NCSHP resists this plain reading of the statute, urging us to join the Fifth and
Tenth Circuits in holding “Federal statute prohibiting discrimination” refers only to
“statutes that deal solely with discrimination by recipients of federal financial assistance.”
Cronen v. Tex. Dep’t of Human Servs., 977 F.2d 934, 937–38 (5th Cir. 1992); see also Levy
v. Kan. Dep’t of Soc. & Rehab Servs., 789 F.3d 1164, 1171 (10th Cir. 2015). The dissent
agrees, insisting that the Court, too, could see this ambiguity if only it’d ignore the statute’s
text. Diss. Op. at 58, 60–63 (interpreting “the provisions of any other Federal statute
prohibiting discrimination” to mean “statutory enactments whose subject matter deals
solely with discrimination”). But there is a difference between identifying ambiguity in a
statute and identifying ambiguity that would exist if a statute’s text were different. NCSHP
and the dissent only do the latter. 4 Contra Borden v. United States, 141 S. Ct. 1817, 1829
(2021) (“A court does not get to . . . insert convenient language to yield the court’s
preferred meaning.”); Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (“The starting point
in discerning congressional intent is the existing statutory text.”) (emphasis added).
4
The dissent correctly notes that, by rejecting this brand of statutory interpretation,
we take a different view of the residual clause than two of our sister circuits. See Levy, 789
F.3d at 1171; Cronen, 977 F.2d at 937–38. But this split is not new. The Fourth Circuit
first diverged from Cronen’s reasoning with our decision in Madison v. Virginia, 474 F.3d
118, 130 (4th Cir. 2006). Madison, decided 14 years after Cronen, declined to
acknowledge, let alone adopt, the Fifth Circuit’s view that that residual clause only
encompasses “statutes that deal solely with discrimination” 977 F.2d at 937. Instead, we
found CRREA’s enumerated statutes similar because they all “expressly” prohibited
discrimination, and we reasoned that a non-enumerated statute must share this feature to
fall within the residual clause. 474 F.3d at 132–33. Today, we follow the path that
Madison paved.
21
If we constrain ourselves to the text as written, the residual clause imposes but two
conditions: that the law be federal and that it prohibit discrimination by recipients of
Federal financial assistance. The Affordable Care Act is undoubtedly federal. And it
prohibits discrimination by recipients of Federal financial assistance—as it was designed
to do. See, e.g., 42 U.S.C. § 18116(a) (prohibiting health programs and activities from
engaging in discrimination if they “receiv[e] Federal financial assistance”); cf. Doe, 926
F.3d at 239 (“The Affordable Care Act prohibits discrimination based on several
grounds.”); Mead v. Holder, 766 F. Supp. 2d 16, 19 (D.D.C. 2011) (explaining that the
Affordable Care Act was designed to remedy disparate access to health care rooted, in part,
on discrimination based on wealth and preexisting conditions); Valarie K. Blake, Civil
Rights as Treatment for Health Insurance Discrimination, 2016 WIS. L. REV. FORWARD
37, 41 (2016) (“[M]any of the ACA’s more notable provisions sought to discourage
discrimination by health insurers . . . .”).
Section 1557 is one of the many provisions within the ACA advancing this
objective. It requires that “an individual shall not . . . be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under, any health program or
activity, any part of which is receiving Federal financial assistance.” 42 U.S.C. § 18116(a).
This prohibition mirrors those contained in Title VI, Title IX, the Age Discrimination Act,
and § 504 of the Rehabilitation Act—the four statutes CRREA incorporates by name. See
id. Reinforcing the statute’s plain meaning, one Senator explained that § 1557’s “explicit[]
prohib[ition]” was “necessary to remedy the shameful history of invidious discrimination
and the stark disparities in outcomes in our health care system.” Br. for Nonprofit Civil
22
Rights, Advocacy, and Public Interest Organizations as Amici Curiae Supporting
Appellees 4 n.7, ECF No. 40 (quoting Health Care and Education Reconciliation Act of
2010, 156 Cong. Rec. S. 1821, 1842 (daily ed. Mar. 23, 2010) (statement of Sen. Patrick
Leahy)). With § 1557, the ACA took a major step toward “ensur[ing] that all Americans
are able to reap the benefits of health insurance reform equally without discrimination.”
Id. That the Affordable Care Act does more than prohibit discrimination does not lessen
the prohibition’s force or effect. 5
As a result, this case stands in contrast to our decision in Madison, 474 F.3d at 132–
33. There, we addressed whether the Religious Land Use and Institutionalized Persons Act
of 2000, 42 U.S.C. § 2000c-1(a) (RLUIPA) “clearly and unambiguously” fell within
CRREA’s residual clause. 474 F.3d at 132–33. Declining to rule on the question of
whether a “catch-all provision” like CRREA’s residual clause “could suffice as an
unequivocal textual waiver,” we held that RLUIPA fell outside CRREA because it was not
5
The concurring opinion contends that we need not look beyond § 1557’s objectives
if we read the phrase “prohibiting discrimination by recipients of Federal financial
assistance” to modify “provision” instead of “statute.” Conc. Op. at 33–38. But where this
reading avoids surplusage, it runs up against the last-antecedent rule. See Nat’l Elec. Mfrs.
Ass’n v. U.S. Dep’t of Energy, 654 F.3d 496, 508 (4th Cir. 2011) (explaining that under the
last-antecedent rule, a statutory clause ordinarily only modifies its nearest antecedent). To
be sure, the last-antecedent rule “is not an absolute and can assuredly be overcome by other
indicia of meaning.” Cf. Lockhart v. United States, 577 U.S. 347, 352 (2016). But I am
reluctant to resolve a battle of the canons that the parties did not raise, brief, or argue. See
Opening Br. at 28–29 (assuming that the phrase “prohibiting discrimination by recipients
of Federal financial assistance” modifies “statute”); Response Br. at 17–23 (same). And I
do not find it necessary to do so here. As a majority of the Court today holds, the sovereign
immunity waiver contained in CRREA’s residual clause clearly applies to NCSHP
regardless of whether “prohibiting discrimination by recipients of Federal financial
assistance” modifies “provision” or “statute.”
23
sufficiently similar to the statutes CRREA specifically listed. Id. Invoking noscitur a
sociis and ejusdem generis, we explained that “[e]very statute set out in the CRREA
expressly prohibits discrimination.” Id. (citing 29 U.S.C. § 794(a) (2000) (prohibiting
“discrimination” on the basis of disability); 20 U.S.C. § 1681(a) (2000) (prohibiting
“discrimination” on the basis of sex); 42 U.S.C. § 6102 (2000) (prohibiting
“discrimination” on the basis of age); 42 U.S.C. § 2000d (2000) (prohibiting
“discrimination” on the basis of race, color, or national origin)). RLUIPA, however, “does
not speak in those terms.” Id. at 133. In fact, rather than “requir[ing] identical treatment
of similarly situated individuals,” like the CRREA statutes, “RLUIPA requires that States
treat religious accommodation requests more favorably than non-religious requests.” Id.
(emphasis added).
As Madison illustrates, the “sufficiently similar” inquiry does little more than ask
whether the provision identified is really one that prohibits discrimination. 474 F.3d at132–33. It does not, as NCSHP puts it, “substitute the judicial for the legislative
department of government.” Opening Br. at 24 (quoting Kolender v. Lawson, 461 U.S.
352, 358 n.7 (1983)). Unlike the cases NCSHP cites involving unduly vague criminal laws,
this case is not one where the “legislature fail[ed] to provide such minimal guidelines” that
it permits judges to “pursue their personal predilections.” Cf. Kolender, 461 U.S. at 358(discussing the notice and separation-of-powers problems that arise when criminal statutes
are unconstitutionally vague). Instead, CRREA’s residual clause reflects a specific
objective to render states liable for money damages when they engage in unlawful
discrimination. Reading this clause to encompass § 1557 is wholly consistent with the task
24
to which the judiciary is assigned: enforcing statutes “according to [their] terms.” Hartford
Underwriters Ins. Co., 530 U.S. at 6.
ii.
The dissent contends that Dellmuth v. Muth, 491 U.S. 223 (1989) forecloses today’s
result. Diss. Op. at 76–82; but see Sossamon, 563 U.S. at 292 (recognizing that the question
of whether CRREA’s residual clause satisfies the clear-statement rule is an open question).
Not so. 6
At the most basic level, Dellmuth involved Congress’s ability to abrogate a state’s
sovereign immunity, not its ability to condition spending upon a state’s waiver of sovereign
immunity. 491 U.S. at 227. Abrogation is conceptually similar but analytically distinct
from sovereign immunity waivers. Cf. Bennett-Nelson v. Louisiana Bd. of Regents, 431
F.3d 448, 450–55 (5th Cir. 2005) (differentiating a sovereign immunity waiver from the
abrogation of sovereign immunity). For one, the source of authority is different.
Congress’s authority to condition federal funds upon a state’s waiver of sovereign
immunity flows from the spending clause. Murphy, 548 U.S. at 296; see also U.S. CONST.,
Art. I, § 8, cl. 1. Meanwhile, Congress’s authority to abrogate a state’s sovereign immunity
finds its footing in § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445,
456 (1976); see also U.S. CONST., Amend XIV, § 5. With sovereign immunity waivers,
6
The dissent’s reliance on Lane, 518 U.S. at 198–200 is similarly puzzling. See
Diss Op. at 42 n.12. Lane of course concluded that the term “public entity” was
insufficiently clear to allow CRREA’s equalization provision to stand as a federal
sovereign immunity waiver. In the Court’s view, this provides little guidance on whether
the CRREA’s residual clause may stand as the state sovereign immunity waiver that it
purports to be.
25
states remain the ultimate decisionmakers on whether they will subject themselves to suits
for damages by accepting federal funds. New York, 505 U.S. at 168. Not so with
abrogation—Congress has the final word. Tennessee v. Lane, 541 U.S. 509, 518 (2004).
It is undoubtedly tempting to conflate the two concepts—they both implicate states’
sovereign immunity and they both trigger a stringent, “clear statement” requirement.
Sossamon, 563 U.S. at 284 (sovereign immunity waivers); Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 73 (2000) (abrogation). But the differences between these concepts are far
from academic. It is easy to imagine a statute that clearly abrogates states’ sovereign
immunity without clearly setting forth a sovereign immunity waiver (e.g., “Exercising our
powers under § 5 of the Fourteenth Amendment, we abrogate states’ sovereign immunity
defense against claims of intentional race-based discrimination in the workplace that seek
monetary or equitable relief.”). And vice versa. This does not diminish the clarity with
which Congress must reduce its intentions into the text of a statute. It merely acknowledges
that Congress can clearly engage in abrogation without engaging in conditional spending,
and it can clearly engage in conditional spending without engaging in abrogation. Stated
differently: The fact that both doctrines require a “clear statement” from Congress does
not mean that they require (or permit) the same statement. Accordingly, even if Dellmuth
stood for the proposition that the dissent asserts—that CRREA’s residual clause is not a
clear statement of congressional abrogation—it would not answer the question presented
here.
But Dellmuth becomes even less relevant when you realize that it does not in fact
hold that the residual clause cannot abrogate states’ sovereign immunity. Russell Muth’s
26
complaint recounted EHA violations spanning from 1980 to 1983. Dellmuth, 491 U.S. at
225. But CRREA only applies to “violations that occur in whole or in part after October
21, 1986.” 42 U.S.C. § 2000d-7(b); see also Dellmuth, 491 U.S. 228–29 (“In connection
with the [CRREA] argument, respondent recognizes that the Rehabilitation Act
amendments expressly apply only to violations that occur in part after October 21, 1986.”)
(internal quotation marks omitted). Noting the obstacle posed by CRREA’s text, Muth
raised a “nontextual” argument: “that [a]lthough the amendment became effective after
Muth initially filed suit, . . . the overwhelming support for the amendment show[ed] that it
reflect[ed] Congress’ intent in originally enacting the EHA [].” Id. at 229 (quoting Br. for
Respondent Muth 32, n.48). Muth’s argument lacked a textual hook, not because CRREA
cannot work in tandem with other statutes, but because CRREA could not apply to Muth’s
claims at all. Consequently, the Supreme Court’s rejection of Muth’s argument simply
affirmed the well-settled principle that Congress’s intent to abrogate sovereign immunity
must be textual. Id. at 230. It did not, as the dissent insists, prejudge the force or effect of
CRREA’s residual clause. Id. at 229 (addressing Muth’s nontextual arguments “[w]ithout
intending in any way to prejudge the Rehabilitation Act Amendments”).
Here, by contrast, Plaintiffs’ sovereign-immunity-waiver argument is rooted in clear
statutory text. Their claims arose after 1986 and they allege violations of a provision of a
“Federal statute prohibiting discrimination by recipients of Federal financial assistance”—
specifically, § 1557 of the Affordable Care Act. See 42 U.S.C. § 2000d-7(a)(1); see supra
at 18–24. Dellmuth simply does not provide helpful guidance here; nor does it “plainly
27
lead[] to” the conclusion that the residual clause is not a clear and unequivocal sovereign
immunity waiver. See Diss. Op. 76.
IV.
Section 1557 of the ACA unequivocally conditions the receipt of federal financial
assistance upon a state’s waiver of sovereign immunity against suits for money damages.
NCSHP, being a recipient of federal funds, is not immune from suit here. We affirm.
AFFIRMED
28
DIAZ, Circuit Judge, concurring in part:
Because I agree that Section 1557 of the Affordable Care Act, when read in
conjunction with the Civil Rights Remedies Equalization Act of 1986 (“CRREA”),
constitutes a waiver of sovereign immunity for states (and state agencies) that choose to
accept federal funds for a health program or activity, I’m pleased to join Chief Judge
Gregory in affirming the district court’s judgment. I write separately to address some of
the dissent’s contentions and highlight how Section 1557 claims are categorically different
from the claims in the cases our colleague relies on. 1
I.
It’s important to note that the plaintiffs here brought discrimination claims under a
federal provision that explicitly prohibits discrimination by recipients of federal financial
assistance. CRREA’s residual clause provides, in relevant part: “A State shall not be
immune under the Eleventh Amendment of the Constitution of the United States from suit
in Federal court for a violation of . . . the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7(a)(1).
This provision evinces Congress’s intent that CRREA’s carefully crafted, “unambiguous
1
The North Carolina State Health Plan argues for the first time on appeal that
Section 1557 doesn’t “extend unambiguously” to it because it’s “not clearly a ‘health
program or activity.’” Appellant’s Br. at 20–21. But I agree with Chief Judge Gregory
that the Plan didn’t make this argument before the district court and thus waived it. I
therefore assume that the Plan is a “health program or activity” under Section 1557.
29
waiver,” Lane v. Pena, 518 U.S. 187, 200 (1996), would apply to at least some claims
beyond those brought under its four enumerated statutes.
The question is what kind of claims clearly and unequivocally fall within the
residual clause’s scope. The text alone allows for two interpretations. The first, and in my
view correct, reading is that Congress sought to waive sovereign immunity for claims
brought under statutory provisions that target discrimination by recipients of federal
financial assistance. The second reading would find a waiver of sovereign immunity with
respect to a claim brought under any provision of a statute that, somewhere, contains a
provision prohibiting discrimination by recipients of federal financial assistance. I explain
next why that second reading is wrong.
A.
My analysis begins with a definition. A “statute” is “legislation enacted by any
lawmaking body, such as a legislature, administrative board, or municipal court. The term
act or legislation is interchangeable as a synonym.” STATUTE, BLACK’S LAW
DICTIONARY (11th ed. 2019). Thus, reading “prohibiting discrimination by recipients of
Federal financial assistance” to in effect modify only the word “statute” would extend
CRREA’s waiver to any claim based on an alleged violation of any provision in an act that
also contains a provision prohibiting discrimination by recipients of federal financial
assistance. This interpretation results in a broad waiver of state sovereign immunity—even
for claims that have nothing to do with discrimination.
30
This was the type of claim at issue in Cronen v. Texas Department of Human
Services, 977 F.2d 934 (5th Cir. 1992). 2 There, the Fifth Circuit rejected the plaintiff’s
argument that CRREA abrogated state sovereign immunity in a suit for damages and
injunctive relief for alleged violations of the Food Stamp Act. Id. at 937–38. The plaintiff
didn’t allege discrimination; rather, he alleged that the state violated the Act by refusing to
allow him to deduct certain expenses from his income for purposes of computing his food
stamp benefits. Id. at 936. His abrogation argument relied on the mere existence of the
following provision within the Act: “In the certification of applicant households for the
food stamp program, there shall be no discrimination by reason of race, sex, religious creed,
national origin, or political beliefs.” Id. at 937 (quoting 7 U.S.C. § 2020(c)).
As framed by the Fifth Circuit, the plaintiff sought to “interpret the [residual] clause
as abrogating Eleventh Amendment immunity under any federal statute prohibiting
discrimination and involving the distribution of any federal financial assistance. Under
[this] interpretation, the general subject matter of the statute makes no difference.” Id.Unsurprisingly, the court rejected this argument, instead holding “that Congress intended
2
Cronen is an abrogation case that was decided in 1992, four years before the
Supreme Court first recognized CRREA as an “unambiguous waiver” of state sovereign
immunity to suits brought under Section 504 of the Rehabilitation Act, Lane, 518 U.S. at
200, and without the benefit of subsequent case law in the waiver context. Indeed, the Fifth
Circuit has since recognized CRREA as a valid waiver of state sovereign immunity for
suits brought under its four enumerated statutes. See Pederson v. La. State Univ., 213 F.3d
858, 876 (5th Cir. 2000) (Title IX); Miller v. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d
342, 347–48 (5th Cir. 2005) (en banc) (Rehabilitation Act); Pace v. Bogalusa City Sch.
Bd., 403 F.3d 272, 280–85 (5th Cir. 2005) (en banc) (same). It hasn’t considered whether
Section 1557 claims fall within CRREA’s scope.
31
to abrogate Eleventh Amendment immunity only for statutes that deal solely with
discrimination by recipients of federal financial assistance.” 3 Id.The district court’s opinion in Ohta v. Muraski, another case relied on by the dissent,
turns on the same interpretation of the residual clause—that “prohibiting discrimination by
recipients of Federal financial assistance” modifies “statute.” 4 No. 3:93 CV 00554 (JAC),
1993 WL 366525 (D. Conn. Aug. 19, 1993). That case also involved a plaintiff who didn’t
allege discrimination. Rather, he sued for an alleged violation of 42 U.S.C. § 290dd-2,
which required the state to keep records of substance-abuse treatment confidential. Id. at
*1. The plaintiff argued that CRREA’s residual clause applied because the provision was
“part of a comprehensive scheme intended to establish and protect certain rights of
substance abusers.” 5 Id. at *3.
3
As I discuss later, the Fifth Circuit recently applied (and explained) this holding in
a waiver case. See Sullivan v. Tex. A&M Univ. Sys., 986 F.3d 593 (5th Cir. 2021).
4
Ohta was also a pre-Lane abrogation case decided without the benefit of
subsequent case law in the waiver context. The Second Circuit had previously listed
CRREA as an example of legislation “that has clearly stated Congress’ intention to
abrogate states’ immunity from damage actions in a variety of contexts,” Santiago v. N.Y.
State Dep’t of Corr. Servs., 945 F.2d 25, 31 (2d Cir. 1991), and it recently recognized
CRREA as a waiver of immunity for claims under Section 504 of the Rehabilitation Act
against recipients of federal financial assistance, T.W. v. N.Y. State Bd. of Law Exam’rs,
996 F.3d 87, 92 (2d Cir. 2021). It hasn’t considered whether (or in what contexts) the
residual clause effectuates waiver.
5
The statute at issue in Ohta was later amended to include an antidiscrimination
provision, but it didn’t include one when Ohta was decided. Compare 42 U.S.C. § 290dd-
2 (1993) with 42 U.S.C. § 290dd-2 (2020).
32
As our friend in dissent emphasizes, the district court in Ohta assumed that the
statute at issue was “a statute prohibiting discrimination by recipients of federal aid within
the meaning of [CRREA].” 6 Id. at *4. The court then concluded that “broad and unspecific
language like ‘any other Federal statute prohibiting discrimination’” can’t “meet the
stringent requirements established by the Supreme Court for Congressional abrogation.”
Id. And it rejected a strawman argument that, in enacting CRREA, Congress considered
its residual clause a “sufficient waiver of state immunity for every federal statute referring
to discrimination by recipients of federal aid.” Id. at *5.
B.
But the residual clause needn’t—and shouldn’t—be interpreted so broadly. That’s
because the phrase “prohibiting discrimination by recipients of Federal financial
assistance” can be read to waive sovereign immunity only for claims alleging violations of
provisions that themselves prohibit discrimination by recipients of federal financial
assistance. The difference is both simple and a natural reading of CRREA’s residual clause:
the phrase “prohibiting discrimination by recipients of Federal financial assistance”
modifies the entire preceding integrated clause, “provisions of any other Federal statute,”
rather than the word “statute” alone.
Under this narrower interpretation, Section 1557 claims are categorically different
from those brought in Cronen and Ohta. As the district court here explained, “Section
6
This was quite the assumption, as the statute neither contained the word
“discrimination” nor prohibited federal financial recipients from engaging in it. See 42
U.S.C. § 290dd-2 (1993).
33
1557 is a nondiscrimination provision which is directly aimed at recipients of federal
funding.” Kadel v. Folwell, 446 F. Supp. 3d 1, 16 (M.D.N.C. 2020). “In fact, the kinds of
discrimination prohibited by Section 1557 coincide with those referenced in CRREA.” Id.And “the enforcement mechanisms provided for in Section 1557 are exactly those
‘provided for and available under’ the statutes expressly named in CRREA.” Id. (quoting
42 U.S.C. § 18116(a)). “In short,” the district court reasoned, “it is hard to see how Section
1557 could be any more ‘like the statutes expressly listed.’” Id. (quoting Madison v.
Virginia, 474 F.3d 118, 133 (4th Cir. 2006)); see also Sossamon v. Texas, 563 U.S. 277,
292 (2011) (“General words, such as the residual clause [], are construed to embrace only
objects similar in nature to those objects enumerated by the preceding specific words. . . .
[E]ach of the statutes specifically enumerated in CRREA explicitly prohibits
‘discrimination.’”) (cleaned up).
And the narrower interpretation is what we must apply in the Eleventh Amendment
immunity context, because—as the dissent correctly points out—the Supreme Court has
explained that “where a statute is susceptible of multiple plausible interpretations,
including one preserving immunity, this Court will not consider a State to have waived its
sovereign immunity.” 7 Sossamon, 563 U.S. at 287. But here (and unlike in Sossamon),
7
In Sossamon, the Supreme Court determined that suits for damages under Section
3 of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) fall outside of
the residual clause’s scope. Id. at 291–92. The Court assumed without deciding “that a
residual clause like the one in [CRREA] could constitute an unequivocal waiver.” Id. at
292. But the Court concluded that because Section 3’s text “does not prohibit
‘discrimination’; rather, it prohibits ‘substantial burdens’ on religious exercise,” it’s “not
unequivocally a ‘statute prohibiting discrimination’ within the meaning of [CRREA].” Id.(cleaned up).
34
the plaintiffs’ claims clearly and unequivocally fall within the residual clause’s scope—
even when the clause is interpreted narrowly.
C.
This narrower interpretation of the residual clause is also the most faithful to
CRREA’s text. When interpreting a statute, we should consider “the language itself, the
specific context in which that language is used, and the broader context of the statute as a
whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). And “[a] statute should be
construed so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (cleaned up).
Here, the relevant text provides:
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation of
section 504 of the Rehabilitation Act of 1973, title IX of the Education
Amendments of 1972, the Age Discrimination Act of 1975, title VI of the
Civil Rights Act of 1964, or the provisions of any other Federal statute
prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7(a)(1). Reading the text such that the phrase “prohibiting
discrimination by recipients of Federal financial assistance” modifies only the word
“statute” would render “the provisions of” superfluous. One can’t violate a statute without
violating one (or more) of its provisions. Thus, if “prohibiting discrimination by recipients
of Federal financial assistance” modifies “statute,” then “the provisions of” could simply
be removed from the residual clause without losing any meaning. But “we cannot adopt a
reading of [CRREA] that renders part of [it] superfluous over one that gives effect to its
35
every clause and word.” United States v. Simms, 914 F.3d 229, 241 (4th Cir.), cert. denied,
140 S. Ct. 304 (2019) (cleaned up).
Interpreting “prohibiting discrimination by recipients of Federal financial
assistance” to modify “provisions of any other Federal statute” is also consistent with
CRREA’s structure. Eleventh Amendment immunity is waived for claims alleging “a
violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education
Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act
of 1964, or the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7(a)(1) (emphasis added).
By its terms, CRREA’s waiver applies to violations of certain kinds of antidiscrimination
provisions located within broader statutes. 8 It doesn’t, however, apply to all violations of
those statutes simply because they happen to contain antidiscrimination provisions.
So too with the residual clause. Here, CRREA’s unambiguous waiver doesn’t apply
to all violations of the Affordable Care Act simply because Section 1557 exists. Rather, it
applies only to violations of Section 1557, which is precisely what the plaintiffs allege. 9
Chief Judge Gregory and Judge Agee say that my reading of the residual clause
conflicts with the last-antecedent rule, which counsels that “a limiting clause or phrase . . .
should ordinarily be read as modifying only the noun or phrase that it immediately
8
The exception is the Age Discrimination Act, which deals solely with
discrimination by recipients of federal financial assistance. See 42 U.S.C. §§ 6101–6107.
9
The district court recognized this distinction, emphasizing that the residual clause
“applies to ‘the provisions of any other Federal statute’ which, like Section 1557, tie
nondiscrimination to federal funding.” Kadel, 446 F. Supp. 3d at 15 n.8.
36
follows,” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). But this case is unlike others where
that canon typically controls.
The last-antecedent rule generally applies where a statute contains a list,
“reflect[ing] the basic intuition that when a modifier appears at the end of a list, it is easier
to apply that modifier only to the item directly before it.” Lockhart v. United States, 577
U.S. 347, 351 (2016). And the canon doesn’t apply when “the modifier directly follows a
concise and ‘integrated’ clause.” Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S.Ct.
1061, 1077 (2018). Here, the phrase “the provisions of any other Federal statute,” 42
U.S.C. § 2000d-7(a)(1), “hangs together as a unified whole, referring to a single thing (a
type of [provision]),” Cyan, 138 S.Ct. at 1077. Thus, “the most natural way to view the
modifier is as applying to the entire preceding clause.” See id. (eschewing the last-
antecedent rule to apply the modifier to the entire phrase “[a]ny covered class action
brought in any State court involving a covered security,” rather than the partial phrase
“involving a covered security” (emphasis added)).
Moreover, as both the Chief and Judge Agee acknowledge, the last-antecedent rule
isn’t “absolute.” Barnhart, 540 U.S. at 26. In this case and as I explain above, “other
indicia of meaning,” including the canon of surplusage and the structure of the statute,
point to the narrower interpretation. Id; see also United States v. Hayes, 555 U.S. 415,
425–26 (2009) (holding that the last-antecedent rule is defeated when applying it would
violate the rule against superfluity and strain the syntax of the provision).
Judge Agee further argues that the canon of ejusdem generis (of the same kind)
requires narrowing the residual clause to reach only the operative provisions within statutes
37
that can be deemed “antidiscrimination legislation” at large. See Diss. Op. at 60–61; 61
n.4. Respectfully, that’s not correct.
Ejusdem generis prevents the broadest reading of a general provision in a statute
from swallowing a more specific one. See RadLAX Gateway Hotel, LCC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012). But here, my colleague deploys the last-antecedent rule
to create the very breadth in the residual clause that he then argues must be resolved by
ejusdem generis. A reading which forcibly broadens the reach of a statutory provision by
use of one canon only to narrow it with another proves too much.
Rather, reading the clause “prohibiting discrimination by recipients of Federal
financial assistance” to modify “provisions of any other Federal statute” instead of
“statute” alone is both natural and avoids any tension with ejusdem generis. That reading
alone gives effect to every word in CRREA and ensures that the residual clause only
reaches “objects similar in nature to those objects enumerated by the preceding specific
words,” i.e., federal statutory provisions that themselves target discrimination by recipients
of federal financial assistance. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15
(2001) (internal citation omitted). Ejusdem generis requires no more.
II.
A.
Our dissenting colleague also urges us to adopt the Fifth Circuit’s interpretation of
the residual clause which, in his view, defeats waiver here. With respect, that view
misreads the Fifth Circuit’s cases.
38
As I noted earlier, Cronen held “that Congress intended to abrogate Eleventh
Amendment immunity only for statutes that deal solely with discrimination by recipients
of federal financial assistance.” 977 F.2d at 937. Relying on this holding, the dissent
insists that the residual clause’s waiver can be read to apply only “to statutory enactments
whose subject matter deals solely with discrimination by recipients of federal financial
assistance.” Diss. Op. at 61. According to the dissent, this “plausible” interpretation
precludes finding waiver here, because Section 1557 prohibits discrimination only by “any
health program or activity” receiving federal financial assistance (as opposed to prohibiting
discrimination by anyone receiving federal financial assistance). Id. at 16; 42 U.S.C.
§ 18116(a).
There are at least three problems with the dissent’s analysis. First, it adds words to
the residual clause that simply aren’t there. Second, it assumes that “prohibiting
discrimination by recipients of Federal financial assistance” modifies “statute” rather than
“provisions,” a mistake that I’ve already addressed. Third, it relies on an incorrect assertion
from Cronen: that “[e]ach of the four statutes listed in [CRREA] aims to prevent various
types of discrimination by recipients of any type of federal financial assistance.” 977 F.2d
at 937–38. As the Fifth Circuit later recognized in Sullivan, Title IX prohibits sex
discrimination specifically by “any education program or activity receiving Federal
financial assistance.” 986 F.3d at 597 (quoting 20 U.S.C. § 1681(a)) (emphasis added).
Indeed, the Fifth Circuit applied Cronen’s holding quite differently in Sullivan.
There, it held that the state didn’t waive its immunity to suit by accepting federal financial
39
assistance under either Title I of the Americans with Disabilities Act (“ADA”) or the
Family and Medical Leave Act (“FMLA”). Id. at 596–99. The court reasoned:
[Cronen’s] narrower interpretation accords with [CRREA’s] text. The listed
statutes preceding the residual clause all limit their substantive
antidiscrimination provisions to recipients of federal funding. See 29 U.S.C.
§ 794(a) (prohibiting discrimination on the basis of disability in “any
program or activity receiving Federal financial assistance”); 20 U.S.C.
§ 1681(a) (prohibiting discrimination on the basis of sex “under any
education program or activity receiving Federal financial assistance”); 42
U.S.C. § 6102 (prohibiting discrimination on the basis of age in “any
program or activity receiving Federal financial assistance”); 42 U.S.C.
§ 2000d (prohibiting discrimination on the basis of race, color, or national
origin in “any program or activity receiving Federal financial assistance”).
Id. at 597. Thus, the Sullivan court held that Title I of the ADA doesn’t fall within the
residual clause’s scope because its “substantive provisions prohibit discrimination by a
wide range of entities, not just those receiving federal funding.” 10 Id. at 598. And “[l]ike
the ADA,” the court held, “the FMLA’s substantive provisions cover a far broader range
of entities than “recipients of Federal financial assistance.” Id.
This reasoning supports waiver here. Like CRREA’s four enumerated statutes, the
Affordable Care Act “limit[s] its substantive antidiscrimination provisions to recipients of
federal funding.” Id. at 597; 42 U.S.C. § 18116(a) (prohibiting discrimination by “any
10
The Tenth Circuit reached a similar conclusion in Levy v. Kansas Department of
Social and Rehabilitation Services, where it held that a retaliation claim brought under
Title V of the ADA didn’t fit within the residual clause’s scope. 789 F.3d 1164, 1171 (10th
Cir. 2015) (“[T]he ADA has a much broader focus than discrimination by recipients of
federal financial assistance.”). The court went on to observe “that the ADA was passed
after [CRREA],” reasoning that “Congress could have included a similar waiver provision
in the ADA or added the ADA to the list of nondiscrimination statutes in [CRREA], but it
did not.” Id. To the extent that Levy purports to reject wholesale the residual clause’s
applicability to provisions enacted after 1986, I decline to follow it.
40
health program or activity, any part of which is receiving Federal financial assistance”)
(emphasis added). That the Affordable Care Act as a whole is broader than its
antidiscrimination provision is beside the point—the same is true for CRREA’s enumerated
statutes. Just like Section 504, Title IX, and Title VI, Section 1557 is a provision of a
broader federal statute that explicitly “prohibit[s] discrimination by recipients of Federal
financial assistance.” 42 U.S.C. § 2000d-7(a)(1).
The district court was thus correct to hold that “Section 1557, when read in
conjunction with CRREA, effectuates a valid waiver of sovereign immunity.” Kadel, 446
F. Supp. 3d at 26.
B.
I briefly address two more of the dissent’s points.
First, it can’t be true that CRREA isn’t a “relevant statute” when determining
whether a state has waived immunity to suits within CRREA’s scope. See Diss. Op. at 68
(quoting Sossamon, 563 U.S. at 284). Every circuit court to consider the question has read
CRREA in conjunction with its enumerated statutes to find waiver. See Gruver v. La. Bd.
of Supervisors for La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 181 n.2 (5th Cir.
2020), cert. denied sub nom. Bd. of Supervisors of LSU v. Gruver, No. 20-494, 2020 WL
7132339 (U.S. Dec. 7, 2020) (collecting cases); T.W., 996 F.3d at 92. And Sossamon didn’t
overrule or abrogate any of those decisions.
If (as our colleague insists) a waiver must be spelled out within the
antidiscrimination provision itself, it logically follows that CRREA can’t be a “relevant
statute” in any waiver case. The Supreme Court, however, has said no such thing. Indeed,
41
after determining that Section 3 of RLUIPA doesn’t fall within the residual clause’s scope,
the Sossamon Court described its holding more broadly: “We conclude that States, in
accepting federal funding, do not consent to waive their sovereign immunity to private suits
for money damages under RLUIPA because no statute expressly and unequivocally
includes such a waiver.” Sossamon, 563 U.S. at 293 (emphasis added). 11
Second, it’s of no moment that Congress has drafted some sovereign immunity
waivers differently. Could Congress have chosen to copy and paste CRREA’s text into
Section 1557 rather than craft Section 1557 to fall within CRREA’s scope? Of course. But
choosing the latter construction over the former doesn’t invalidate an otherwise clear,
unequivocal waiver. As Justice Stevens warned in Lane:
A rule that refuses to honor such a waiver because it could have been
expressed with even greater clarity . . . does not facilitate—indeed, actually
obstructs—the neutral performance of the Court’s task of carrying out the
will of Congress. . . . Our task . . . is not to educate busy legislators in the
niceties and details of scholarly draftsmanship, but rather to do our best to
determine what message they intended to convey. When judge-made rules
require Congress to use its valuable time enacting and reenacting provisions
whose original intent was clear to all but the most skeptical and hostile
reader, those rules should be discarded.
518 U.S. at 211–12 (Stevens, J., dissenting). 12
11
Sossamon also expressly left open the question whether (and, by implication,
when) the residual clause can constitute an unequivocal waiver. Sossamon, 563 U.S. at
292. It’s thus wrong to say that Dellmuth, an abrogation case decided 22 years before
Sossamon, somehow settled that question. See Diss. Op. 75–82; Dellmuth v. Muth, 491
U.S. 223 (1989).
12
In Lane, the majority held that CRREA doesn’t waive the federal government’s
immunity to suit for money damages under Section 504 of the Rehabilitation Act,
reasoning that “an admittedly ambiguous reference to ‘public ... entit[ies]’ in the remedies
provision” pales in comparison to “the care with which Congress responded to [the Court’s]
(Continued)
42
* * *
The plaintiffs here brought discrimination claims under Section 1557. That
provision, in turn, explicitly prohibits discrimination by recipients of federal financial
assistance. It follows that Section 1557, when read in conjunction with CRREA,
constitutes a clear and unequivocal waiver of sovereign immunity for states that choose to
accept federal funds for a health program or activity (as the district court found). Indeed,
the North Carolina State Health Plan knew full well that it could be sued for violating
Section 1557 no later than 2016, when its Board of Trustees voted to remove the challenged
exclusion from its 2017 plans after being advised by a consulting firm and outside legal
counsel that it needed to do so to comply with the Affordable Care Act. The Plan reinserted
the exclusion in 2018, and the plaintiffs’ alleged harm occurred thereafter.
But because I find it unnecessary to decide whether Section 1557 constitutes such a
waiver standing alone, I join only those portions of Chief Judge Gregory’s opinion that
affirm the district court’s reasoning.
decision in Atascadero by crafting an unambiguous waiver of the States’ Eleventh
Amendment immunity in [CRREA].” Id. at 200.
43
AGEE, Circuit Judge, dissenting:
“The 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.” U.S. Const. amend. XI. The
Supreme Court is unmistakably clear that this guarantee of state sovereign immunity is
“central to sovereign dignity,” Sossamon v. Texas, 563 U.S. 277, 283 (2011) (quoting Alden
v. Maine, 527 U.S. 706, 715 (1999)), and “enforce[s] an important constitutional limitation
on the power of federal courts,” id. at 284. To safeguard that “important constitutional
limitation” and preserve the states’ “sovereign dignity,” the Supreme Court applies a
simple, yet “stringent” test to determine if a state has waived its sovereign immunity from
private suits in federal court: “A State’s consent to suit must be ‘unequivocally expressed’
in the text of the relevant statute.” Id.
Sossamon thus directs us to undertake two inquiries when presented with
Congressional Spending Clause legislation that a private party claims requires a waiver of
state sovereign immunity in exchange for federal funding. First, we must ensure that
Congress has unambiguously conditioned the receipt of federal funding upon a state’s
agreement to waive its sovereign immunity. Second, we must hold Congress to the strict
task of stating that unambiguous condition in the text of that relevant statute so as to prevent
implied waivers of state sovereign immunity. The majority opinion does not follow these
precepts. It ignores the latent ambiguity that every circuit to consider the statute at issue
here has found, and doubles down by using that statute to hold that states have implicitly
waived their sovereign immunity despite the absence of any clear textual waiver.
44
At issue in this case is the residual clause in a single provision of the Civil Rights
Remedies Equalization Act of 1986 (“CRREA”). The majority holds this clause
unambiguously requires the North Carolina State Health Plan (“NCSHP”) to waive its
sovereign immunity from suits brought under “the provisions of any other Federal statute
prohibiting discrimination by recipients of Federal financial assistance.” Pub. L. No. 99-
506, tit. X, § 1003(a)(1), 100 Stat. 1808, 1845 (1986) (codified at 42 U.S.C. § 2000d–
7(a)(1)) [hereinafter “the Residual Clause”]. The majority further posits that section 1557
of the Patient Protection and Affordable Care Act (“ACA”) is one such law, so that the
NCSHP is liable in private discrimination suits brought under section 1557 by operation of
the Residual Clause.
The Fifth and Tenth Circuits, the only courts of appeals to consider the Residual
Clause, plainly held that it cannot serve as waiver of state sovereign immunity from any
discrimination statute. Both courts recognized that there are multiple plausible ways of
interpreting the Residual Clause. Because applying one of those plausible interpretations
to the ACA would preserve the NCSHP’s sovereign immunity, the Supreme Court requires
that we hold that there is no waiver. See Sossamon, 563 U.S. at 287.
To create a circuit split on this consequential issue, one would expect the majority
opinion to provide a good reason––or at least some reason––why the Fifth and Tenth
Circuits’ reading of the Residual Clause is implausible. Circuit splits are not to be created
without a “strong” or “compelling” reason for doing so, see United States v. Thomas, 939
F.3d 1121, 1130 (10th Cir. 2019) (collecting cases from the First, Second, Third, Fifth,
Seventh, Ninth, and Federal Circuits), because federal law, especially federal constitutional
45
law, “is supposed to be unitary,” Wash. Energy Co. v. United States, 94 F.3d 1557, 1561
(Fed. Cir. 1996). But here, all that the majority provides is a single sentence in a footnote
acknowledging that it is creating a circuit split. In doing so it fails to give respect to a
fundamental aspect of our constitutional design that provides the states “a residuary and
inviolable sovereignty,” and does not “relegate[] [them] to the role of mere provinces or
political corporations.” Alden, 527 U.S. at 715 (citation and internal quotation marks
omitted).
Compounding that error, the majority fails to recognize that the Residual Clause
cannot serve as the requisite textual waiver of sovereign immunity from section 1557
claims. As the Tenth Circuit has held, “[f]or a waiver of sovereign immunity to be
‘knowing and voluntary,’ it cannot be hidden in another statute and only applied to [section
1557] through implication.” Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164,
1170 (10th Cir. 2015). Sossamon’s clear textual waiver requirement also ensures that
Congress specifically considered the issue of state sovereign immunity vis-à-vis section
1557, but the Residual Clause––enacted twenty-five years before the ACA––gives no such
assurance. Indeed, the Supreme Court’s decision in Dellmuth v. Muth, 491 U.S. 223 (1989),
recognized that the Residual Clause could not provide the required textual expression of
Congressional intent to abrogate state sovereign immunity. That holding counsels the same
conclusion in the waiver context.
The majority’s flawed decision will not impact just the NCSHP. Since this case was
argued, at least one other district court has made the same analytical errors that the majority
makes here, finding that the Residual Clause implicitly waives states’ sovereign immunity
46
from section 1557 actions. See Fain v. Crouch, No. 3:20-0740, 2021 WL 2004793, at *2–
4 (S.D. W. Va. May 19, 2021). More lower courts will now be compelled to follow that
same fallacious path.
The Supreme Court should correct the majority’s errors without delay to ensure the
preservation of the integrity of the Eleventh Amendment and the dignity of state sovereign
immunity.
I must therefore respectfully dissent.
I.
A.
On March 23, 2010, President Barack Obama signed into law the ACA, Pub. L. No.
111-148, 124 Stat. 119, “a sweeping legislative and regulatory overhaul of the nation’s
health-care system,” Korte v. Sebelius, 735 F.3d 654, 659 (7th Cir. 2013). Its primary aims
were “to increase the number of Americans covered by health insurance and decrease the
cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012). To
accomplish that task, Congress adopted a complicated statutory framework, including
provisions compelling insurers to issue coverage to every person who requests it;
compelling citizens to purchase health insurance or else be “taxed” for not doing so; and
requiring states to establish health care “Exchanges” in which people can purchase health
insurance. See King v. Burwell, 576 U.S. 473, 478–82 (2015). And that just barely scratches
the surface.
47
Nestled within the hundreds, if not thousands, of provisions that sprawl across the
ACA’s 900 pages is a single antidiscrimination provision, the statute at issue in this case.
In Subtitle G of Title I of the ACA, under the “Miscellaneous Provisions” subtitle,
Congress created section 1557, which states:
Except as otherwise provided for in this title (or an amendment made by this
title), an individual shall not, on the ground prohibited under title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education
Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act
of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794), be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under, any health program or
activity, any part of which is receiving Federal financial assistance,
including credits, subsidies, or contracts of insurance, or under any program
or activity that is administered by an Executive Agency or any entity
established under this title (or amendments). The enforcement mechanisms
provided for and available under such title VI, title IX, section 504, or such
Age Discrimination Act shall apply for purposes of violations of this
subsection.
Pub. L. No. 111-148, tit. I, § 1557(a), 124 Stat. at 260 (emphasis added) (codified at 42
U.S.C. § 18116(a)). Not one of the ACA’s myriad provisions defines the phrase “health
program or activity.” In fact, the Department of Health and Human Services, which was
delegated the responsibility for making rules and regulations relating to section 1557, 42
U.S.C. § 18116(c), did not enact a final rule defining the term “health program or activity”
until 2016, some six years after its enactment, see 81 Fed. Reg. 31,375, 31,467 (May 18,
2016). Additionally, and of particular relevance to this case, nowhere in section 1557 or
the ACA did Congress use the words “sovereign immunity” or reference the Eleventh
Amendment.
48
B.
Invoking the district court’s federal question jurisdiction, 28 U.S.C. § 1331,
Plaintiffs here sought compensatory, injunctive, and declaratory relief against the NCSHP,
which “administers comprehensive group health insurance to eligible teachers and other
North Carolina state employees,” J.A. 23. Plaintiffs argue that the NCSHP violates section
1557 of the ACA by declining to cover certain medical procedures for transgender
individuals.
The NCSHP moved to dismiss the suit on sovereign immunity grounds, positing
that neither section 1557 nor the Residual Clause provides the requisite clear, unambiguous
declaration that the NCSHP consented to suit in federal court. 1 The district court properly
recognized that “[s]ection 1557 does not purport to condition a state’s acceptance of federal
funding on a waiver of sovereign immunity[,] [n]or does any other provision of the ACA.”
Kadel v. Folwell, 446 F. Supp. 3d 1, 15 (M.D.N.C. 2020). However, the court then went
astray by finding that the Residual Clause serves as North Carolina’s clear and
unambiguous waiver of its sovereign immunity because it accepted federal funding for
“health program[s] and activit[ies]” after the ACA’s passage. Id. at 15–17. The CRREA
provides:
A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation of
section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], title IX of
the Education Amendments of 1972 [20 U.S.C. § 1681 et seq.], the Age
Discrimination Act of 1975 [42 U.S.C. § 6101 et seq.], title VI of the Civil
Rights Act of 1964 [42 U.S.C. § 2000d et seq.], or the provisions of any other
1
In its motion to dismiss below, the NCSHP agreed that it “is an agency of the State
of North Carolina.” J.A. 82.
49
Federal statute prohibiting discrimination by recipients of Federal financial
assistance.
42 U.S.C. § 2000d–7(a)(1) (emphasis added).
According to the district court, our precedent made clear that “‘any state reading
[the Residual Clause] in conjunction with’ an applicable nondiscrimination provision
‘would clearly understand’ that it consents to suit for violations of the statute in question.”
Kadel, 446 F. Supp. 3d at 15 (quoting Litman v. George Mason Univ., 186 F.3d 544, 554
(4th Cir. 1999)). Because section 1557 of the ACA “is a nondiscrimination provision . . .
directly aimed at recipients of federal funding,” id. at 16, the district court concluded that
“[s]ection 1557, when read in conjunction with [the Residual Clause], effectuates a valid
waiver of sovereign immunity,” id. at 17. That conclusion is error.
II.
A.
In 1793, the Supreme Court “literally shocked the Nation,” Edelman v. Jordan, 415
U.S. 651, 662 (1974), when it held that a state could be liable for monetary damages to a
citizen of another state, see generally Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
Soon thereafter, “[s]entiment for passage of a constitutional amendment to override the
decision rapidly gained momentum.” Edelman, 415 U.S. at 662. On February 7, 1795, the
Eleventh Amendment was ratified.
Since then, the Supreme Court has consistently held that the Eleventh Amendment
confirms that states are immune from private suits brought against them in federal court.
50
Hans v. Louisiana, 134 U.S. 1, 15 (1890); accord, e.g., In re New York, 256 U.S. 490, 497
(1921) (“[T]he entire judicial power granted by the Constitution does not embrace authority
to entertain a suit brought by private parties against a State without consent given[.]”);
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (“For over a century we have
reaffirmed that federal jurisdiction over suits against unconsenting States ‘was not
contemplated by the Constitution when establishing the judicial power of the United
States.’” (quoting Hans, 134 U.S. at 15)). The Supreme Court systematically adheres to
this understanding of the Eleventh Amendment because it is most faithful to the Founders’
intention for the states’ retention of independent sovereignty under the system of
federalism created by the Constitution. See Alden, 527 U.S. at 728 (“[The Court’s
precedents] reflect a settled doctrinal understanding, consistent with the views of the
leading advocates of the Constitution’s ratification, that sovereign immunity derives not
from the Eleventh Amendment but from the structure of the original Constitution itself.”);
Monaco v. Mississippi, 292 U.S. 313, 323–25 (1934) (collecting examples of James
Madison’s, John Marshall’s, and Alexander Hamilton’s views on how the Constitution
preserves states’ sovereignty, which includes immunity from private suit).
This does not mean that private suits can never be maintained against a state. As
relevant here, a state is free to waive its sovereign immunity and consent to suit in federal
court. E.g., Clark v. Barnard, 108 U.S. 436, 447–48 (1883). “Permitting such waivers
reflects the fact that sovereign immunity is an element of state sovereignty, not a
categorical limitation on the federal judicial power.” Litman, 186 F.3d at 550. Such a
waiver can occur in one of several ways, for example: (1) expressly, through a state statute
51
or constitutional provision, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985),
superseded on other grounds by 42 U.S.C. § 2000d–7; (2) through the state’s voluntary,
affirmative litigation conduct in a particular suit, see Lapides v. Bd. of Regents, 535 U.S.
613, 619 (2002); or (3) by voluntarily participating in those federal programs in which
Congress, pursuant to its Spending Clause power, unequivocally conditions participation
upon a waiver of sovereign immunity, see Atascadero, 473 U.S. at 246–47. Plaintiffs rely
solely on the third means, contending that the NCSHP (as an arm of the State of North
Carolina) waived its sovereign immunity by accepting federal funding for “health
program[s] and activit[ies],” as that term is used in the ACA.
B.
Under the Spending Clause, U.S. Const. art. I, § 8, cl. 1, “Congress may fix the
terms on which it shall disburse federal money to the States,” Pennhurst State Sch. & Hosp.
v. Halderman (Pennhurst I), 451 U.S. 1, 17 (1981). Such legislation “is much in the nature
of a contract: in return for federal funds, the States agree to comply with federally imposed
conditions.” Id. Generally speaking, “the legitimacy of the attached conditions rests ‘on
whether the State voluntarily and knowingly accepts the terms of the contract.’” Litman,
186 F.3d at 552 (quoting Pennhurst I, 451 U.S. at 17).
“[T]he Eleventh Amendment reflects ‘the fundamental principle of sovereign
immunity [that] limits the grant of judicial authority in Art[icle] III,’” so unless a state
waives its immunity, courts lack jurisdiction over suits brought by private citizens against
a state in federal court. Seminole Tribe, 517 U.S. at 64 (second alteration in original)
(quoting Pennhurst State Sch. & Hosp. v. Halderman (Pennhurst II), 465 U.S. 89, 97–98
52
(1984)); see Wisc. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (explaining that the
Eleventh Amendment “does not automatically destroy original jurisdiction,” but instead
“grants the State a legal power to assert a sovereign immunity defense should it choose to
do so”). Accordingly, the “test for determining whether a State has waived its immunity
from federal-court jurisdiction is a stringent one.” Sossamon, 563 U.S. at 284 (emphasis
added) (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 675 (1999)). To satisfy this stringent test, “[a] State’s consent to suit must be
‘unequivocally expressed’ in the text of the relevant statute.” Id. (emphasis added) (quoting
Pennhurst II, 465 U.S. at 99); accord Madison v. Virginia, 474 F.3d 118, 130 (4th Cir.
2006) (“Congress must make its intention unmistakably clear in the language of the
statute.” (quoting Hoffman v. Conn. Dep’t of Income Maintenance, 492 U.S. 96, 101 (1989)
(plurality opinion))). This requirement is a clear statement rule. Sossamon, 563 U.S. at 290(referring to the “‘unequivocal statement’ rule” as a “requirement of a clear statement in
the text of the statute”); see also, e.g., Haight v. Thompson, 763 F.3d 554, 568 (6th Cir.
2014) (stating that Sossamon created a “clear-statement rule”). “Only by requiring this
‘clear declaration’ by the State can [a court] be ‘certain that the State in fact consents to
suit.’” Sossamon, 563 U.S. at 284 (quoting Coll. Sav. Bank, 527 U.S. at 680).
In undertaking this “stringent” analysis, “a waiver of sovereign immunity ‘will be
strictly construed, in terms of its scope, in favor of the sovereign.’” Id. at 285 (quoting Lane
v. Peña, 518 U.S. 187, 192 (1996)). Accordingly, a “[w]aiver may not be implied.” Id. at
284; accord Madison, 474 F.3d at 130 (“There can be no consent by implication or by use
of ambiguous language.” (alteration omitted) (quoting Library of Congress v. Shaw, 478
53
U.S. 310, 318 (1986))). This also means that neither the “mere receipt of federal funds,”
Atascadero, 473 U.S. at 246–47, nor a state’s waiver of immunity from private suits in its
own courts, Coll. Sav. Bank, 527 U.S. at 676, can implicitly establish a waiver of sovereign
immunity from private suits brought in federal court.
The strict construction of statutes in favor of the sovereign has one final, important
consequence: “[a]ny ambiguities in the statutory language are to be construed in favor of
immunity.” FAA v. Cooper, 566 U.S. 284, 290 (2012). 2 “Ambiguity exists if there is a
plausible interpretation of the statute that would not authorize [the claim].” Id. at 290–91.
Thus, “where a statute is susceptible of multiple plausible interpretations, including one
preserving immunity, [courts] will not consider a State to have waived its sovereign
immunity.” Sossamon, 563 U.S. at 287.
III.
As the above discussion reflects, the Supreme Court has meticulously curated its
sovereign immunity jurisprudence to ensure that all courts are to follow the same well-
trodden analytical path: “A State’s consent to suit must be ‘unequivocally expressed’ in
the text of the relevant statute.” Id. at 284 (quoting Pennhurst II, 465 U.S. at 99). That trail
of decisions should compel two relatively straightforward conclusions in this case.
2
While Cooper considered a waiver of the United States’ sovereign immunity, the
Supreme Court has made clear that the principles underlying the relevant analysis of
whether Congress unequivocally expressed an intent to waive the federal government’s
sovereign immunity apply equally to determining whether Congress unequivocally
expressed an intent to condition the receipt of federal funds on a state’s waiver of sovereign
immunity. See Sossamon, 563 U.S. at 285 n.4.
54
First, the Residual Clause is not an unequivocal expression of Congress’ intent for
states to waive their sovereign immunity from section 1557 claims in exchange for federal
funding. There is at least one other plausible interpretation of the Residual Clause that
preserves the NCSHP’s immunity from section 1557 suits, and pursuant to Sossamon, that
mandates finding that no waiver of state sovereign immunity occurred.
Second, even assuming Congress intended for the Residual Clause to apply, its
general catch-all provisions cannot serve as an unequivocal expression of a State’s consent
to suit “in the text of the relevant statute.” Sossamon, 563 U.S. at 284. As confirmed by the
Supreme Court’s decision in Dellmuth, the Residual Clause provides no basis to conclude
that states knowingly waived their sovereign immunity from section 1557 suits, or that
Congress specifically considered the issue of state sovereign immunity when enacting
section 1557.
By adopting a contrary analysis, the majority precipitously creates a circuit split. It
disregards the strict mandates that both the Eleventh Amendment and binding Supreme
Court precedent place upon Congress when it seeks to exact a waiver of sovereign
immunity from the states in exchange for federal funding. In short, the majority’s analysis
is wrong.
A.
Sossamon first requires that we ensure that Congress has unambiguously
conditioned the receipt of federal funding upon a state’s agreement to waive its sovereign
immunity. See 563 U.S. at 285–88. To determine whether the NCSHP has waived its
sovereign immunity from section 1557 suits, one must first discern what category of
55
statutes fall under the Residual Clause’s broad umbrella. I agree with the majority that with
any question of statutory interpretation, the inquiry begins with the text of the relevant
statute. See, e.g., Peck v. U.S. Dep’t of Labor, Admin. Review Bd., 996 F.3d 224, 230 (4th
Cir. 2021). From there, however, we diverge significantly.
1.
Because the CRREA does not define what constitutes a “provision[] of any other
Federal statute prohibiting discrimination by recipients of Federal financial assistance,” see
42 U.S.C. § 2000d–7(a)(1), “we look first to its language, giving the words used their
ordinary meaning,” Levin v. United States, 568 U.S. 503, 513 (2013) (quoting Moskal v.
United States, 498 U.S. 103, 108 (1990)). 3 More particularly, we look to the prevailing
ordinary meaning “at the time Congress enacted the statute.” Wis. Cent. Ltd. v. United
States, 138 S. Ct. 2067, 2070 (2018) (quoting Perrin v. United States, 444 U.S. 37, 42
(1979)).
In reviewing statutory language for its plain meaning, “[w]e customarily turn to
dictionaries for help,” Blakely v. Wards, 738 F.3d 607, 611 (4th Cir. 2013) (en banc), for
“[o]rdinarily, a word’s usage accords with its dictionary definition,” Yates v. United States,
3
This question is demonstrably not controlled by this Court’s decision in Madison.
Contra Maj. Op. 21 n.4. We had no occasion there to, and did not, consider the Residual
Clause’s precise scope. Indeed, Madison’s central holding was that the Residual Clause
could not apply to the Religious Land Use and Institutionalized Persons Act because it was
not a discrimination statute. See Madison, 474 F.3d at 133 (“[W]e cannot say that the
CRREA’s catch-all provision is a ‘clear, unambiguous, and unequivocal waiver,’” because
“it is not clear that RLUIPA is a ‘Federal statute prohibiting discrimination’ and ambiguity
again defeats plaintiff’s claim that Virginia, by accepting federal funds, knowingly
consented for damages actions to be brought against it.”). If anything, Madison supports
the NCSHP. It made no “path” for the majority to follow. Maj. Op. 21 n.4.
56
574 U.S. 528, 537 (2015) (plurality opinion); see, e.g., Ransom v. FIA Card Servs., N.A.,
562 U.S. 61, 69 (2011) (relying exclusively on dictionary definitions for the meaning of a
term in a statutory provision). Nonetheless, in this analysis, the judiciary must remain
mindful that “[t]he meaning––or ambiguity––of certain words or phrases may only become
evident when . . . read in their context and with a view to their place in the overall statutory
scheme.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007)
(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000)). And
it is a “cardinal rule of statutory construction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation and internal
quotation marks omitted). Thus, if we ascertain in applying these basic principles of
statutory interpretation that a statute purporting to require states to waive their sovereign
immunity is “susceptible of multiple plausible interpretations, including one preserving
immunity,” then we “[can]not consider a State to have waived its sovereign immunity.”
Sossamon, 563 U.S. at 287.
The majority holds that the Residual Clause unambiguously “imposes but two
conditions: that the law be federal and that it prohibit discrimination by recipients of
Federal financial assistance.” Maj. Op. 22. Judge Diaz echoes this point in his concurrence,
explaining that the phrase “prohibiting discrimination by recipients of Federal financial
assistance” modifies the word “provisions.” Thus, if Congress passes a statute containing
a provision concerning discrimination by those receiving federal financial assistance, and
57
it provides a private right of action, the majority would hold that states have waived their
sovereign immunity from such suits. Full stop. That is incorrect.
To the contrary, there is another plausible way to interpret the scope of
antidiscrimination statutes to which the Residual Clause’s purported waiver of sovereign
immunity applies. Specifically, like the Fifth and Tenth Circuits, I read the Residual Clause
to require that the relevant legislative enactment as a whole––not just one of its individual
provisions––be solely aimed at prohibiting discrimination by recipients of federal financial
assistance. See Cronen v. Tex. Dep’t of Hum. Servs., 977 F.2d 934, 936–38 (5th Cir. 1992);
Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1170–71 (10th Cir. 2015). That
reading flows naturally from the Residual Clause’s plain language and, when applied to
this case, would preserve the NCSHP’s sovereign immunity from section 1557 claims. As
such, Sossamon requires us to hold that there is no waiver of sovereign immunity.
Again, the Residual Clause purports to encompass “the provisions of any other
Federal statute prohibiting discrimination by recipients of Federal financial assistance.”
The distinction between the terms “provision” and “statute” is as meaningful now as it was
in 1986. When the Residual Clause was passed, the word “statute” ordinarily referred to
“[a]n act of the legislature,” and “[d]epending upon its context in usage, a statute [could]
mean a single act of a legislature or a body of acts[.]” Statute, Black’s Law Dictionary (5th
ed. 1979); see also Legislative act, Black’s Law Dictionary, supra (“Enactment of laws.
Law (i.e. statute) passed by legislature in contrast to court-made law.”). Especially given
the regularity in which these legal terms of art are used in the legislative process, we must
presume that Congress intended for them to retain these specialized meanings in the
58
Residual Clause. See Sekhar v. United States, 570 U.S. 729, 733 (2013) (“[W]here
Congress borrows terms of art in which are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts the cluster of ideas that were attached
to each borrowed word in the body of learning from which it was taken and the meaning
its use will convey to the judicial mind unless otherwise instructed.” (alteration in original)
(citation omitted)).
The prevailing edition of Black’s Law Dictionary at the time of the CRREA’s
passage did not include a relevant definition for the word “provision.” It is evident from
other sources, however, that “provision” held a much narrower meaning, referring to only
a clause within a statute. See Provision, Webster’s Third New International Dictionary
(1961) (“[A] stipulation (as a clause in a statute or contract) made in advance.” (emphasis
added)); Provision, Oxford English Dictionary (rev. 1st ed. 1978) (“Each of the clauses or
divisions of a legal or formal statement, or such a statement itself, providing for some
particular matter; also, a clause in such a statement which makes an express stipulation or
condition[.]” (emphasis added)).
Plainly, the modifying phrase “prohibiting discrimination by recipients of Federal
financial assistance” acts as a limit of application to certain objects. But what category of
objects? The oft-applied textual canon of statutory interpretation, the “last antecedent rule,”
helps answer that inquiry. That canon presumes that “a limiting clause or phrase . . .
modif[ies] only the noun or phrase that it immediately follows.” United States v. Hayes,
555 U.S. 415, 425 (2009) (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)); see also
Maj. Op. 23 n.5. Here, the phrase “prohibiting discrimination by recipients of Federal
59
financial assistance” immediately follows the word “statute.” Under the last antecedent
rule, the Residual Clause pertains only to Congressional enactments (“statutes”) that
concern the issue of discrimination by recipients of federal financial assistance, not to
discrete provisions or clauses. In other words, it is not the clause that must prohibit
discrimination by these recipients; it is the legislative act as a whole that must do so. The
Residual Clause thus would not encompass antidiscrimination clauses that happen to
appear in statutes that cannot be characterized as antidiscrimination statutes: like the ACA.
While the last antecedent rule may be overcome by textual evidence of a contrary
legislative intent, see Hayes, 555 U.S. at 425, there is no such evidence here. In fact, the
textual evidence available in the CRREA further underscores the plausibility of reading the
phrase “prohibiting discrimination by recipients of Federal financial assistance” as
modifying the word “statute.” The CRREA’s four enumerated statutes demonstrate that
Congress was only concerned with antidiscrimination legislation, not antidiscrimination
provisions. As the Fifth Circuit aptly explained in Cronen, “[e]ach of the four statutes listed
in section 2000d–7”––the Rehabilitation Act, the Age Discrimination Act of 1975, Title
VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972––
are ones that “deal solely with discrimination by recipients of federal financial assistance.”
977 F.2d at 937; accord Sullivan v. Texas A&M Univ. Sys., 986 F.3d 593, 597–99 (5th Cir.
2021) (reaffirming and applying Cronen’s interpretation of the Residual Clause). It is thus
eminently reasonable, under the interpretative canon ejusdem generis, to read the Residual
Clause as only reaching those statutes that, when considering their provisions holistically,
deal solely with discrimination by recipients of federal financial assistance. See Circuit
60
City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (“Where general words follow
specific words in a statutory enumeration, the general words are usually construed to
embrace only objects similar in nature to those objects enumerated by the preceding
specific words.” (alteration and citation omitted)); see also Sullivan, 986 F.3d at 597. 4
Under the plausible reading of the Residual Clause as applying only to statutory
enactments whose subject matter deals solely with discrimination by recipients of federal
financial assistance, states would retain their sovereign immunity from suits under section
1557. As the Residual Clause demands, we must look to the characteristics of the relevant
4
My concurring colleague implicitly finds that the last antecedent rule is overcome
here because the CRREA specifies section 504 of the Rehabilitation Act, Title IX of the
Education Amendments of 1972, and Title VI of the Civil Rights Act of 1964, despite the
fact that it generally references the Age Discrimination Act of 1975. Concurring Op. 35–
36. I respectfully disagree. That is the kind of specificity that Supreme Court precedent
requires to achieve a waiver of sovereign immunity. But because of the ambiguous nature
of the Residual Clause, we must examine those four enumerated statutes for some common
characteristics to determine what falls under the nebulous umbrella of “other Federal
statute[s] prohibiting discrimination by recipients of Federal financial assistance.” As the
Fifth Circuit observed, each of those enumerated statutory enactments were designed to
end different types of discrimination by federal funding recipients. See Cronen, 977 F.2d
at 937–38. As the Rehabilitation Act demonstrates, for example, not every prohibition
against discrimination carries with it a private right of action for damages. But to the extent
that the Act provides such a cause of action (specifically, in section 504), states must waive
their sovereign immunity from those claims. The same is true for Title VI of the Civil
Rights Act, Title IX of the Education Amendments of 1972, and the Age Discrimination
Act of 1975. The CRREA merely targets the operative provisions giving rise to a private
right of action within those broader pieces of antidiscrimination legislation. We must
therefore treat the Residual Clause similarly, and only apply its purported waiver to those
legislative enactments solely concerning discrimination by recipients of federal financial
assistance. See Circuit City Stores, Inc., 532 U.S. at 114–15. That statutory context
similarly demonstrates why we cannot read the Residual Clause’s reference to “provisions
of any other Federal statute” as an “integrated” phrase or clause. See Facebook, Inc. v.
Duguid, 141 S. Ct. 1163, 1170 (2021) (“The rule of the last antecedent is context
dependent.”). Contra Concurring Op. 37–38.
61
statute, the ACA. But, the ACA simply is not a law that holistically “aims to prevent
various types of discrimination” by recipients of federal financial assistance. Cronen, 977
F.2d at 937–38. While my colleagues are correct that the ACA contains one
“[m]iscellaneous [p]rovision” concerning discrimination by recipients of federal financial
assistance, see 124 Stat. at 258, 260, the ACA itself is not an antidiscrimination statute.
Rather, it is an omnibus health care “reform” package “that happens to include a provision
prohibiting discrimination” in carrying out one minute aspect of its legislative plan.
Cronen, 977 F.2d at 938. Just like the statutes at issue in Cronen and Levy, the ACA does
not fall within the set of statutes defined in the Residual Clause. See Cronen, 977 F.2d at937–38 (concluding that a provision of the Food Stamp Act, 7 U.S.C. § 2020(c), would not
qualify under this reading of the Residual Clause because it “constitutes a comprehensive
federal entitlement program that happens to include a provision prohibiting discrimination
in disbursing these entitlements”); Levy, 789 F.3d at 1171 (concluding that a provision of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203, did not fall under the
Residual Clause––assuming it could validly provide Congress’ intent for states to waive
state sovereign immunity––for while it was an antidiscrimination statute, the ADA
encompassed those who did and did not receive federal funding, giving it “a much broader
focus” than the CRREA’s four enumerated statutes). 5
In sum, the Residual Clause can plausibly be read to require that the relevant
legislative enactment as a whole––not just one of its individual provisions––be solely
5
Similarly, many of the ACA’s provisions apply to those who do and do not receive
federal financial assistance. See Levy, 789 F.3d at 1171.
62
aimed at prohibiting discrimination by recipients of federal financial assistance. “[A]
plaintiff seeking to invoke the [R]esidual [C]lause must show that his cause of action arises
under a statute within that defined set.” Sullivan, 986 F.3d at 597 (emphasis added). Since
the ACA does not fall within that defined set, the NCSHP’s sovereign immunity from
section 1557 suits would be preserved. Thus, Sossamon requires that we hold that there is
no waiver of sovereign immunity from section 1557 suits. See 563 U.S. at 287.
My concurring colleague resists this result because, in effect, it may render the
Residual Clause void in some settings. However, that is precisely what the Supreme Court
instructs us to do in the context of state sovereign immunity. The Court has been crystal
clear that when a statute like the Residual Clause “is susceptible of multiple plausible
interpretations, including one preserving immunity,” we are required to conclude that states
have not waived immunity. Id. (holding that an ambiguity regarding whether the phrase
“appropriate relief” encompassed damages suits prevented a finding that a state waived its
sovereign immunity from such suits); see also Cooper, 566 U.S. at 290 (“Any ambiguities
in the statutory language are to be construed in favor of immunity, so that the [state’s]
consent to be sued is never enlarged beyond what a fair reading of the text requires.”
(internal citation omitted)). Lower courts must simply recognize the statutory shortcoming
and leave to Congress such future action as it chooses. See, e.g., Dellmuth, 491 U.S. at230–31; Atascadero, 473 U.S. at 245–47. At that point the judicial role has ended. See,
e.g., Ardestani v. I.N.S., 502 U.S. 129, 138 (1991) (“[I]t is the province of Congress, not
this Court, to decide whether to bring administrative deportation proceedings within the
scope of the statute[’s waiver of sovereign immunity.]”); Peck, 996 F.3d at 234 (“Waiving
63
sovereign immunity is a legislative, not a judicial, prerogative.”). Pursuant to this Supreme
Court mandate, we are required to conclude that the NCSHP has not waived sovereign
immunity from suits by virtue of the Residual Clause.
2.
The majority can avoid this straightforward result only by creating a circuit split and
saying that the Residual Clause’s text unambiguously applies to––and thus waives
immunity from suit under––section 1557. In other words, the majority must hold that the
Residual Clause can only be read to apply for all time to any statute that contains a
discrimination provision and involves the distribution of any federal financial assistance.
See Sebelius v. Cloer, 569 U.S. 369, 380–81 (2013) (explaining that the “canon favoring
strict construction of waivers of sovereign immunity” only “give[s] way when the words
of a statute are unambiguous” (internal quotation marks omitted)). But as explained above,
assuming the majority’s reading of the Residual Clause can be deemed plausible, it is
certainly not the only plausible reading. Fundamentally, however, both the majority’s and
concurrence’s readings seem of limited plausibility.
The majority pins its interpretation of the Residual Clause as the only plausible view
under the amorphous rubric that “[b]road general language is not necessarily ambiguous
when congressional objectives require broad terms.” Maj. Op. 20 (quoting Diamond v.
Chakrabarty, 447 U.S. 303, 315 (1980)). Emblematic of the majority’s failure to base its
decision on any of the Supreme Court’s controlling sovereign immunity case law, Diamond
is about as irrelevant a case as one can cite––it has nothing to do with sovereign immunity.
Instead, it considered whether a company’s “micro-organism constitutes a ‘manufacture’
64
or ‘composition of matter’ within the meaning of” the Patent Act, 35 U.S.C. § 101. 447
U.S. at 307. That issue and the related analysis have no nexus to whether Congress has met
the strict requirements necessary to express its intent that states waive their sovereign
immunity from private suits for damages in exchange for federal funding.
Even if Diamond were tangentially relevant, it simply does not follow that in the
sovereign immunity context, broad language used to achieve broad policy goals is sufficient
to effectuate a waiver of state sovereign immunity. Quite the contrary, the Supreme Court
has been clear such a construct is invalid. For example, consider Atascadero’s discussion
of section 504 of the Rehabilitation Act, in which Congress used broad language to
accomplish a broad goal: eliminate discrimination against individuals with disabilities. See
473 U.S. at 244–46 (discussing the then-enacted language of 29 U.S.C. §§ 794 and 794a,
which provided: “No otherwise qualified handicapped individual in the United States . . .
shall, solely by reason of his handicap, 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” and made available “to any person aggrieved by any act or
failure to act by any recipient of Federal assistance” “[t]he remedies, procedures, and rights
set forth in title VI of the Civil Rights Act of 1964”). Those broad provisions failed to
satisfy the rigorous requirements that the Eleventh Amendment places on Congress to
express its intent for states to consent to a waiver of their sovereign immunity. As the
Atascadero Court explained, “given their constitutional role, the States are not like any
other class of recipients of federal aid. A general authorization for suit in federal court is
not the kind of unequivocal statutory language sufficient to abrogate the Eleventh
65
Amendment.” Id. at 246. Nor is such general language sufficient to “manifest[] a clear
intent to condition participation in the programs funded under the Act on a State’s consent
to waive its constitutional immunity.” Id. at 247. Similarly, whatever broad goals were
intended by the Residual Clause’s broad language, that alone cannot satisfy the stringent
requirements for effectively requiring states to waive their sovereign immunity in exchange
for federal funding.
The majority’s strained reliance on Diamond is further undercut by its ipse dixit
observation that the “CRREA’s origin story . . . indicates that broad terms were precisely
what congressional objectives required.” Maj. Op. 20. As Lane demonstrates, Congress’
goal in enacting the CRREA––overturning Atascadero––was completed by making
specific reference to section 504 of the Rehabilitation Act in the text of § 2000d–7(a)(1).
Whatever else Congress may have intended to do through the Residual Clause, even if it
were necessary to use broad terms, Sossamon, Dellmuth, and a host of other cases require
that Congress do so in a way that cannot plausibly be interpreted to preserve states’
sovereign immunity. The Residual Clause simply fails to pass that stringent test. 6
6
The majority further strains to find support for its interpretation of the Residual
Clause in the ACA’s legislative history, citing to the statement of a single Senator
supporting it. Maj. Op. 22–23. But relying on legislative history at all in this analysis yet
again ignores Supreme Court precedent. The Court could not be more explicit: “Legislative
history cannot supply a waiver [of sovereign immunity] that is not clearly evident from the
language of the statute.” Cooper, 566 U.S. at 290 (citing Lane, 518 U.S. at 192); see also,
e.g., Dellmuth, 491 U.S. at 230 (“Lest Atascadero be thought to contain any ambiguity, we
reaffirm today that in this area of the law, evidence of congressional intent must be both
unequivocal and textual.”).
66
Ultimately, the majority fails to engage with the plausible (if not “more persuasive”)
interpretation of the Residual Clause adopted by the Fifth Circuit in Cronen and the Tenth
Circuit in Levy. It simply does not follow that, based on the CRREA’s structure, the
Residual Clause’s reference to “Federal statute[s] prohibiting discrimination by recipients
of Federal financial assistance” can only be read to refer to all discrimination provisions
dealing with all types of federal financial assistance.
Judge Diaz disagrees that the phrase “prohibiting discrimination by recipients of
Federal financial assistance” modifies the word “statute.” In my concurring colleague’s
view, that phrase actually modifies the word “provisions.” Concurring Op. 33–34. But this,
too, is far from the only plausible reading, as it would have us improperly assume that
Congress violated both the last antecedent rule, see Hayes, 555 U.S. at 425, and basic
grammatical rules by intentionally misplacing that modifying phrase far away from its
object (“provision”), see Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (“Because words are
to be given the meaning that proper grammar and usage would assign them, the rules of
grammar govern statutory interpretation unless they contradict legislative intent or
purpose.” (alteration, internal citations, and internal quotation marks omitted)). As
explained in the previous section, there is no legislative intent or purpose evident in the
CRREA’s text to make either assumption. Instead, we must interpret the statute as written. 7
7
My concurring colleague further argues that the phrase “prohibiting discrimination
by recipients of Federal financial assistance” cannot modify “statute” because doing so
would render the word “provisions” superfluous. Concurring Op. 35. That is incorrect. The
relevant statutory context demonstrates that the word “provisions” requires that there be a
clause within an antidiscrimination statute that provides a private right of action.
(Continued)
67
But again assuming that the majority’s and Judge Diaz’ readings of the Residual
Clause were plausible or even “more” plausible than another reading, nothing in either
opinion persuasively demonstrates how either is the only plausible reading. To the contrary,
reading the Residual Clause as only applying to those statutes that deal solely with
discrimination by recipients of federal financial assistance is the most faithful to the
Residual Clause’s text and the CRREA’s structure. The fact that other plausible readings
might exist does not give the majority license to ignore a plausible reading that would
preserve state sovereign immunity. Sossamon directly precludes that course. 563 U.S. at
287 (“[W]here a statute is susceptible of multiple plausible interpretations, including one
preserving immunity, we will not consider a State to have waived its sovereign
immunity.”). That should end this case.
B.
Sossamon also requires that Congress “unequivocally express[] in the text of the
relevant statute” its intent for states to waive their sovereign immunity in exchange for
federal funding, thus giving rise to a clear statement rule. Sossamon, 563 U.S. at 284(internal quotation marks omitted); id. at 290; see also, e.g., Haight, 763 F.3d at 568. The
Supreme Court just reiterated that such “a clear statement [of Congressional intent] is
Otherwise, without such a provision, there is no need for a sovereign immunity waiver. See
Seminole Tribe, 517 U.S. at 54 (explaining that the Eleventh Amendment embodies the
principle that states as independent sovereigns are “not to be amenable to the suit of an
individual without its consent” (emphasis added) (quoting Hans, 134 U.S. at 13)).
68
required to subject States to suit in the waiver and abrogation contexts.” PennEast Pipeline
Co. v. New Jersey, 141 S. Ct. 2244, 2262 (2021).
The Sossamon Court left undecided the question of whether the Residual Clause
could constitute an unequivocal textual waiver. See 563 U.S. at 292. The case before us
directly presents that question, and I would answer it in the negative. The Residual Clause’s
broad, catchall language does not meet the clear statement mandate of a textual waiver of
state sovereign immunity.
The logic of the majority is contrary to both the reasons why the clear statement rule
is so well established and the Supreme Court’s decision in Dellmuth. Congress knows how
to satisfy this requirement and on multiple occasions has done so in direct response to
Supreme Court decisions holding that Congress’ initial language had failed to meet that
burden. Eschewing any semblance of adhering to this past practice, the majority here
improperly assumes a legislative role and rewrites section 1557 altogether, a function not
delegated to this Court under Article III of the Constitution.
1.
The clear statement rule in the sovereign immunity context serves a dual purpose.
First, it ensures that states make knowing waivers of their sovereign immunity in exchange
for federal funding. Sossamon, 563 U.S. at 284; accord, e.g., Pace v. Bogalusa City Sch.
Bd., 403 F.3d 272, 279 (5th Cir. 2005) (en banc) (explaining that Pennhurst I’s “stringent
clear-statement rule ensures that when a state foregoes its Eleventh Amendment immunity
69
in exchange for federal funds, it does so ‘knowingly’”). And second, as Justice Kennedy
explained in Spector v. Norwegian Cruise Line Ltd., “clear statement rules ensure Congress
does not, by broad or general language, legislate on a sensitive topic inadvertently or
without due deliberation.” 545 U.S. 119, 139 (2005) (plurality opinion). Particularly, in the
sovereign immunity context, the clear statement rule “ensures that Congress has
specifically considered state sovereign immunity and has intentionally legislated on the
matter.” Sossamon, 563 U.S. at 290 (emphases added).
The Residual Clause meets none of those purposes. As the Tenth Circuit has
explained, the Residual Clause does not allow for a knowing waiver of state sovereign
immunity vis-a-vis section 1557 because it is “hidden in another statute and only applied
to [section 1557] through implication” by the judicial branch on a case-by-case basis. Levy,
789 F.3d at 1170. Separately, and equally problematic, the Residual Clause also does not
ensure that Congress “specifically considered state sovereign immunity” when adopting
section 1557.
To be sure, one can presume that the 111th Congress was aware of the Residual
Clause when enacting the ACA. See, e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
184–85 (1988) (“We generally presume that Congress is knowledgeable about existing law
pertinent to the legislation it enacts.”). But this “fanciful presumption of legislative
knowledge,” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1079 (2020) (Thomas, J.,
dissenting) (quoting Antonin Scalia & Bryan A. Garner, Reading Law 324 (2012)), cannot
without something more enable a court to “ensure[] that Congress has . . . intentionally
legislated” on the issue of sovereign immunity, Sossamon, 563 U.S. at 290. As Sossamon
70
clearly explained, “[w]aiver may not be implied,” id. at 284, but that is precisely what the
majority does by merely assuming that the 111th Congress was aware of the Residual
Clause and obliquely intended that it function as a waiver of sovereign immunity by virtue
of receiving federal funding for “health program[s] or activit[ies].” Instead, the something
more that is required is an unequivocal textual expression of that intent in the language of
the relevant statute. See, e.g., id.; Dellmuth, 491 U.S. at 229–30.
Contrary to the clear statement rule, the majority proffers that Congress may enact
a catchall residual clause purporting to require states to waive their sovereign immunity for
an amorphous category of discrimination statutes, decline to use it for decades, mention
discrimination in an omnibus bill like the ACA, and still effectuate a waiver of a state’s
sovereign immunity. But section 1557 neither discusses sovereign immunity nor
incorporates the Residual Clause. That fact leads to only two reasonable inferences: (a)
Congress had forgotten that the Residual Clause exists and did not specifically consider
the issue of sovereign immunity, or (b) Congress remembered that the Residual Clause
exists, but only “drop[ped] coy hints” that it intended to rely on it and “stop[ped] short of
making its intention manifest.” Dellmuth, 491 U.S. at 231. In either situation, the clear
statement rule is not satisfied. In the former, an inference of Congressional amnesia, the
Residual Clause would enable Congress to improperly, “by broad or general language,
legislate on a sensitive topic inadvertently or without due deliberation” twenty-five years
in advance. Spector, 545 U.S. at 139. And in the latter, as the Tenth Circuit has explained,
the unexpecting state has not made a “knowing and voluntary” waiver of its sovereign
immunity. Levy, 789 F.3d at 1170. “Congress ‘does not hide elephants in mouseholes,’”
71
and a state’s waiver of sovereign immunity “cannot be hidden in another statute and only
applied to the [ACA] through implication.” Id. (quoting Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 468 (2001)); see also Pennhurst I, 451 U.S. at 17 (“There can, of course, be
no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what
is expected of it. Accordingly, if Congress intends to impose a condition on the grant of
federal moneys, it must do so unambiguously.”).
Moreover, Congress is well-versed in how to satisfy these clear statement principles
in the sovereign immunity context. Time and again, Congress has shown its ability to make
very clear in the relevant statute its intention for states to be subject to suit in federal court,
particularly in response to judicial decisions finding that Congress’ first effort was
insufficient. First, the CRREA itself was passed in response to the Atascadero decision,
which held that section 504 of the Rehabilitation Act did not unmistakably express an intent
for states to waive their sovereign immunity. See Lane, 518 U.S. at 197–98. The language
the CRREA used to require a waiver of state sovereign immunity from section 504 suits–
–“A State shall not be immune under the Eleventh Amendment . . . from suit in Federal
court for a violation of section 504 of the Rehabilitation Act of 1973,” 42 U.S.C. § 2000d–
7(a)(1)––is “the sort of unequivocal waiver that [the Supreme Court’s] precedents
demand.” Lane, 518 U.S. at 198; accord Litman, 186 F.3d at 553–54. 8 Next, just one year
8
The majority interprets Lane as holding that the CRREA as a whole, including the
Residual Clause, is “the standard for unequivocal sovereign immunity.” Maj. Op. 14. But
that reading does not track the facts or legal principles of Lane. The narrow question
presented in that case was whether § 2000d–7 effectively waived the Federal
Government’s sovereign immunity from damages suits for violations of section 504 of the
(Continued)
72
after Dellmuth, which held that the Residual Clause did not effectively abrogate states’
sovereign immunity from Education of the Handicapped Act (“EHA”) claims, Congress
amended the EHA––and, notably, not the Residual Clause––to make clear that states would
not be immune to suits under it. See Education of the Handicapped Act Amendments of
1990, Pub. L. No. 101-476, § 103, 104 Stat. 1103, 1106 (codified at 20 U.S.C. § 1403(a))
(“A State shall not be immune under the eleventh amendment to the Constitution of the
United States from suit in Federal court for a violation of this Act.”). That same Congress
also passed the Copyright Remedy Clarification Act (“CRCA”), Pub. L. No. 101-553, 104
Stat. 2749 (1990) (codified at 17 U.S.C. §§ 501(a), 511), in response to decisions of the
federal courts of appeals holding that the copyright laws failed to clearly articulate an intent
to abrogate state sovereign immunity or otherwise require states to waive their sovereign
immunity, see, e.g., Richard Anderson Photography v. Brown, 852 F.2d 114, 118–22 (4th
Cir. 1988); BV Eng’g v. Univ. of Cal., L.A., 858 F.2d 1394, 1396 (9th Cir. 1988). The
CRCA used no uncertain terms: “Any State . . . shall not be immune, under the Eleventh
Amendment of the Constitution of the United States or under any other doctrine of
sovereign immunity, from suit in Federal court by any person” for violations of specified
copyright laws. Pub. L. No. 101-553, § 2(a), 104 Stat. at 2749 (codified at 17 U.S.C. §
Rehabilitation Act. 518 U.S. at 191. The Court did not base any of its holdings on the
Residual Clause. The Court’s observation regarding the “unequivocal waiver” contained
in § 2000d–7 came in discussing how Congress passed that provision in response to
Atascadero––a section 504 Rehabilitation Act case. Id. at 197–98. Indeed, when
considering whether § 2000d–7(a)(1) waived the Federal Government’s sovereign
immunity, the Court only referred to “the listed Acts” contained in § 2000d–7(a)(1), not
the Residual Clause. Id. at 198–99.
73
511). 9 Similarly, in 1994, Congress sought to override the Supreme Court’s ruling in
Hoffman v. Connecticut Department of Income Maintenance, 492 U.S. 96 (1989), that
section 106 of the Bankruptcy Code, 11 U.S.C. § 106, did not sufficiently express an intent
to abrogate the states’ Eleventh Amendment immunity. It amended § 106 to unequivocally
provide that “[n]otwithstanding an assertion of sovereign immunity, sovereign immunity
is abrogated as to a governmental unit . . . with respect to” a host of enumerated sections
of the U.S. Code. Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, tit. I, § 113, 108
Stat. 4106, 4117 (codified at 11 U.S.C. § 106(a)). And as this Court pointed out in Robinson
v. U.S. Department of Education, Congress is especially well-versed in the identical task
of legislating waivers of federal sovereign immunity. 917 F.3d 799, 803 (4th Cir. 2019)
(citing and discussing six different statutes).
These non-exhaustive, representative examples demonstrate that Congress is well
aware of how to express its intent to legislate on the issue of state sovereign immunity in
the text of the relevant statute. And it could have done so here vis-à-vis section 1557 in
several ways. Like the statutes just discussed, Congress could have placed the relevant
waiver language in section 1557. Alternatively, like the CRREA’s explicit reference to,
inter alia, Title IX, Congress could have amended the CRREA to include an explicit
reference to section 1557. See Litman, 186 F.3d at 553–54. Or Congress could have
expressly incorporated the Residual Clause into section 1557. See Kimel v. Fla. Bd. of
9
As it turns out, while the CRCA may have clearly expressed Congress’ intent to
abrogate state sovereign immunity, Congress did not actually have the power to do so. See
Allen v. Cooper, 140 S. Ct. 994 (2020).
74
Regents, 528 U.S. 62, 73–74 (2000) (holding that the Age Discrimination in Employment
Act, 29 U.S.C. § 626(b), effectively abrogated states’ sovereign immunity by incorporating
the Fair Labor Standards Act’s cause of action against a “public agency,” which the FLSA
statutorily defined to include “any agency of . . . a State, or a political subdivision of a
State,” 29 U.S.C. §§ 203(x), 216(b)). Congress did none of these here, however. Without
such clear action, courts cannot be assured that Congress intentionally legislated on the
issue of state sovereign immunity when crafting the “miscellaneous provision” at issue
here, section 1557. See Sossamon, 563 U.S. at 290. Nor can courts be assured that all states
have objective notice that their acceptance of federal funding for health programs and
activities is conditioned upon a waiver of their sovereign immunity from section 1557
actions.
There is no clear textual evidence that Congress intended for states to waive their
sovereign immunity from section 1557 actions by operation of the Residual Clause. The
majority’s analysis wholly fails to acknowledge––and ultimately cannot overcome––this
inability to establish a waiver of state sovereign immunity sufficient to establish Article III
jurisdiction.
2.
Further undercutting the majority’s use of the Residual Clause as an implicit waiver
of state sovereign immunity from section 1557 claims is the Supreme Court’s decision in
Dellmuth, which deemed the Residual Clause a “nontextual” argument in determining
whether Congress abrogated states’ sovereign immunity from suits under the EHA. 491
75
U.S. at 229–30. As explained below, the holding in Dellmuth plainly leads to the
conclusion that the Residual Clause similarly cannot serve as the necessary textual waiver
of state sovereign immunity.
As an initial matter, the majority says that Dellmuth is irrelevant because efforts to
abrogate state sovereign immunity and to exact waivers of state sovereign immunity do not
“require (or permit) the same clear statement.” Maj. Op. 26. That is simply incorrect. The
requirement of a clear textual statement of Congressional intent does not stem from § 5 of
the Fourteenth Amendment (abrogation) or from the Spending Clause (waiver). Rather, it
is “a rule of constitutional law based on the Eleventh Amendment.” Hilton v. S.C. Pub.
Rys. Comm’n, 502 U.S. 197, 204 (1991). So it necessarily follows that if Congress fails to
make its intent to abrogate state sovereign immunity explicit in the text of the relevant
statute, then it has similarly failed to make a textual indication of its intent to condition the
states’ receipt of federal funds upon a waiver of sovereign immunity.
That is precisely what Atascadero held. The Court explained that the Rehabilitation
Act lacked any textual evidence of a Congressional intent to condition the states’ receipt
of federal funding upon a waiver of sovereign immunity for the same reason the Act failed
to abrogate that immunity: the Act “does not evidence an unmistakable congressional
purpose . . . to subject unconsenting States to the jurisdiction of federal courts.” Atascadero,
473 U.S. at 247. In other words, Atascadero merely “reaffirm[ed] the rule of prior decisions
requiring the same degree of clarity in a spending power statute, which triggers inquiry into
whether the state waived its eleventh amendment protection, as would be required by an
abrogation statute. The two inquiries are now the same.” George D. Brown, State
76
Sovereignty Under the Burger Court––How the Eleventh Amendment Survived the Death
of the Tenth: Some Broader Implications of Atascadero State Hospital v. Scanlon, 74 Geo.
L.J. 363, 388 (1985); see also John R. Pagan, Eleventh Amendment Analysis, 39 Ark. L.
Rev. 447, 496–97 n.194 (1986) (“Prior to Atascadero, some commentators thought the
Court required a less precise articulation of intent when Congress acted pursuant to the
[F]ourteenth [A]mendment than when it used its [A]rticle I powers. Atascadero indicates,
however, that a uniform clear-statement test now applies.” (internal citations omitted)).
Given that the clear textual statement requirement for abrogation and waivers are
one and the same, the analysis here should be easily guided by Dellmuth. In that case,
Russell Muth brought suit on behalf of his son, who had a learning disability, under the
EHA, Pub. L. No. 94-142, 84 Stat. 175 (1975), as amended 20 U.S.C. § 1400 et seq.
Dellmuth, 491 U.S. at 225–26. Muth challenged various aspects of the individualized
education plan a public school district implemented for his son. Id. The State argued that
Muth’s federal suit was barred by its Eleventh Amendment immunity. Id. at 226. Both
lower courts rejected the State’s challenges, id. at 226–27, but on appeal, the Supreme
Court reversed, id. at 227.
Of relevance here, Muth specifically argued that the Residual Clause “expressly
abrogates state immunity from suits for tuition reimbursement brought under the EHA.”
Br. for Resp. Muth at 30, Dellmuth, 491 U.S. at 223 (No. 87-1855), 1988 WL 1025571, at
*31. Despite the fact that Muth’s claims arose before the CRREA’s effective date, the
Supreme Court nonetheless directly addressed Muth’s Residual Clause arguments as
“nontextual” claims. 491 U.S. at 228. The Court first compared “the language in the
77
[CRREA] with the language of the EHA” and concluded it “serve[d] only to underscore
the difference in the two statutes, and the absence of any clear statement of abrogation in
the EHA.” Id. at 229 (emphasis added). Next, the Court observed that “[w]hen measured
against such explicit consideration of abrogation of the Eleventh Amendment, the EHA’s
treatment of the question appears ambiguous at best.” Id. at 230. The Court continued:
More importantly, however, respondent’s contentions [regarding the
Residual Clause] are beside the point. Our opinion in Atascadero should have
left no doubt that we will conclude Congress intended to abrogate sovereign
immunity only if its intention is “unmistakably clear in the language of the
statute.” Atascadero, 473 U.S., at 242, 104 S.Ct., at 3147. Lest Atascadero
be thought to contain any ambiguity, we reaffirm today that in this area of
the law, evidence of congressional intent must be both unequivocal and
textual. Respondent’s evidence is neither.
Id. After “turn[ing] [its] attention to the proper focus of an inquiry into congressional
abrogation of sovereign immunity, the language of the statute” forming the basis for
Muth’s claim, the Court held that the EHA did not validly abrogate state sovereign
immunity, because it “ma[de] no reference whatsoever to either the Eleventh Amendment
or the States’ sovereign immunity.” Id. at 231 (emphasis added).
Dellmuth thus stands for the principle that, setting aside the CRREA’s enumeration
of four specific statutes, the Residual Clause cannot provide the requisite textual evidence
of Congressional intent to abrogate or waive states’ sovereign immunity from suits under
“Federal statute[s] prohibiting discrimination by recipients of federal financial
assistance.” 10 Because the clear textual statement rule for the abrogation doctrine is the
Dellmuth is not alone in this regard. As previously noted, the Lane Court again
10
had an opportunity to utilize the Residual Clause to hold that the Federal Government’s
(Continued)
78
same as that in the waiver doctrine, see Atascadero, 473 U.S. at 247; Brown, supra, at 388,
it necessarily follows that the Residual Clause fails to provide the necessary textual
evidence of Congressional intent to condition the receipt of federal funds under any statute
enacted after CRREA as a waiver of state sovereign immunity.
The majority’s attempts to distinguish Dellmuth based on the fact that Muth’s
complaint alleged EHA violations that predated the effective date of the CRREA, Maj. Op.
26–27, fail. That timing factor did not impact the Court’s analysis. Instead, the Court rooted
its holding in determining whether Congress expressed an intent to abrogate state sovereign
immunity from EHA suits in the EHA, not a residual clause in a separate statute. So, had
Muth alleged a harm that occurred after the CRREA’s effective date, that would not have
impacted the Court’s characterization of the Residual Clause as a “nontextual” argument
that failed. See Dellmuth, 491 U.S. at 228–31. Further, assuming arguendo that the timing
factor had some impact on the Court’s analysis, at minimum the Court’s recognition of the
Residual Clause as a “nontextual” argument would be dicta. But even as dicta, “we simply
cannot ignore the import of the language used by the Supreme Court in [Dellmuth],” for
we are “bound by Supreme Court dicta almost as firmly as by the Court’s outright
holdings.” Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (quoted approvingly
by Yanez-Marquez v. Lynch, 789 F.3d 434, 450 (4th Cir. 2015); United States v. Fareed,
296 F.3d 243, 247 (4th Cir. 2002)).
sovereign immunity was waived to suits under section 504 of the Rehabilitation Act, but it
declined to do so, holding that the CRREA was too ambiguous to constitute an unequivocal
waiver of federal sovereign immunity. 518 U.S. at 198–200; see supra n.5.
79
Here, as in Dellmuth, there is no “textual hook” between the Residual Clause and
Plaintiffs’ section 1557 claims. Maj. Op. 27. Whatever similarities may lie between section
1557 and the CRREA’s four enumerated antidiscrimination statutes, see Maj. Op. 22–23,
section 1557 does not expressly reference or incorporate the Residual Clause, nor does the
CRREA expressly reference or incorporate section 1557. Just like the EHA in Dellmuth,
that dooms Plaintiffs’ section 1557 claims. As Justice Kennedy wrote for the Court, it is
“difficult to believe that . . . Congress, taking careful stock of the state of Eleventh
Amendment law, decided it would drop coy hints but stop short of making its intention
manifest” that section 1557 would be encompassed by the Residual Clause. Dellmuth, 491
U.S. at 230–31. Without more, the Residual Clause cannot give states the notice required
under the Supreme Court’s sovereign immunity precedent for an effective waiver of their
sovereign immunity from private suits in federal court brought under section 1557.
That conclusion is illustrated by the discussion of Dellmuth by then-Chief United
States District Judge José A. Cabranes in Ohta v. Muraski, No. 3:93 CV 00554 (JAC), 1993
WL 366525 (D. Conn. Aug. 19, 1993). In that case, the plaintiff argued that the Residual
Clause waived state sovereign immunity from suits under 42 U.S.C. § 290dd–2, which
barred the disclosure of certain information “maintained in connection with the
performance of any program or activity relating to substance abuse education, prevention,
training, treatment, rehabilitation, or research.” Id. at *1–2 & n.6 (quoting 42 U.S.C.
§ 290dd–2(a)). As relevant here, Ohta assumed that “§ 290dd–2 is a statute prohibiting
discrimination by recipients of federal aid within the meaning of” the Residual Clause, but
held that the Residual Clause was not “capable of satisfying the requirements of clarity and
80
specificity required by the Supreme Court in cases of Congressional abrogation of state
immunity.” Id. at *4. The court explained:
If, indeed, Congress itself had felt this phrasing to be sufficient waiver of
state immunity for every federal statute referring to discrimination by
recipients of federal aid, it would scarcely have taken such pains in § 2000d–
7(a)(1) specifically to list the Rehabilitation Act, the Education Amendments
of 1972, and Title VI of the Civil Rights Act of 1964 by name. Nor would it
have been necessary for Congress to pass subsequent—and very specific—
abrogations of state immunity in regard to other anti-discrimination statutes.
If the plaintiff were correct that § 2000d–7 eliminates state immunity to suit
for every federal law dealing in some way with “discrimination,” no court
should thereafter have found a suit under an anti-discrimination statute
barred by the Eleventh Amendment, and Congress should not have had to
pass any further abrogation legislation.
Id. at *5.
But, as Judge Cabranes pointed out, the Supreme Court did just that in Dellmuth,
requiring Congress to amend the EHA to provide a specific waiver of sovereign immunity.
Id. Based on this plain logic, he concluded that the Residual Clause “did not automatically
strip states of their immunity to suit in federal court under any and all federal anti-
‘discrimination’ statutes,” for “[h]ad the language of § 2000d–7(a)(1) applied as
sweepingly as the plaintiff suggests, neither the Dellmuth decision nor the 1990
amendments abrogating state immunity with respect to the EHA would have been
necessary.” Id. In other words, “Congress has simply not yet been specific enough.” Id. at
*6.
In sum, Dellmuth stands for the principle that the Residual Clause does not satisfy
the Supreme Court’s clear statement requirement for effectuating an abrogation of state
sovereign immunity. And there is no meaningful difference in the waiver context.
81
Therefore, under our clear statement analysis, the presumption that Congress is “‘aware of
relevant judicial precedent’ when it enacts a new statute,” Guerrero-Lasprilla, 140 S. Ct.
at 1072 (majority opinion) (citation omitted), we should reach the same result as a matter
of first principles. Congress was presumably aware of Dellmuth’s rejection of the Residual
Clause as “nontextual,” which required a separate amendment of the EHA to effectively
legislate on the issue of states’ sovereign immunity from private suits under the EHA in
federal court. Dellmuth, 491 U.S. at 229–30. That should lead to the identical conclusion
that the Supreme Court’s clear statement requirement for conditioning the receipt of federal
funding upon a state’s agreement to waive its sovereign immunity is not met in this case.
See Sossamon, 563 U.S. at 290–91; Atascadero, 473 U.S. at 245–47.
IV.
There is no new ground to break here, and especially no justification for creating a
consequential circuit split. The majority only acknowledges one possible interpretation of
the Residual Clause despite the existence of at least one other plausible interpretation that
has been endorsed by the only circuits to consider the issue and would preserve states’
sovereign immunity. The majority’s result is squarely foreclosed by the Supreme Court’s
sovereign immunity jurisprudence, and fails to respect the “stringent” requirement that a
state’s waiver of sovereign immunity be “unequivocally expressed in the text of the
relevant statute.” Sossamon, 563 U.S. at 284 (internal quotation marks omitted). Indeed, as
Dellmuth confirms, the Residual Clause does not provide courts with the necessary
assurance that states have knowingly waived their sovereign immunity from section 1557
82
suits, or that Congress specifically considered the issue of state sovereign immunity when
enacting section 1557.
The NCSHP’s sovereign immunity from suit should have been confirmed and the
case dismissed. Accordingly, I respectfully dissent. The Supreme Court should proceed
expeditiously to correct the constitutional error here.
83