                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3263
                                   ___________

Bill M., by and through his father and      *
natural guardian, William M., and on        *
behalf of themselves and all other          *
persons similarly situated; John Doe,       *
by and through his mother and natural       *
guardian, Jane Doe, and on behalf of        *
themselves and all other persons            *
similarly situated; Heather V., by and      *
through her mother and guardian,            *
Marcia V., and on behalf of themselves      *
and all other persons similarly situated;   *   Appeal from the United States
Jane S., by and through her mother and      *   District Court for the
natural guardian, Patricia S., and on       *   District of Nebraska.
behalf of themselves and all other          *
persons similarly situated; Kevin V.,       *
by and through his mother and legal         *
guardian, Kathy V., and on behalf of        *
all other persons similarly situated;       *
Jennifer T., by and through her parents     *
and legal guardians, Sharon and Greg        *
T., and on behalf of themselves and all     *
other persons similarly situated;           *
William M., on behalf of his son,           *
Bill M.; Jane Doe, on behalf of her son,    *
John Doe; Marcia V., on behalf of her       *
daughter, Heather V.; Patricia S., on       *
behalf of her daughter, Jane S.; Kathy      *
V., on behalf of her son, Kevin V.;         *
Sharon T., on behalf of her daughter,       *
Jennifer T.; Greg T., on behalf of his      *
daughter, Jennifer T.,                      *
                                          *
              Plaintiffs/Appellees,       *
                                          *
United States of America,                 *
                                          *
              Intervenor on Appeal,       *
                                          *
       v.                                 *
                                          *
Nebraska Department of Health and         *
Human Services Finance and Support; *
Nebraska Department of Health and         *
Human Services; Stephen B. Curtiss,       *
in his official capacity as the Director *
of Nebraska Department of Health and *
Human Services Finance and Support; *
Ron Ross, in his official capacity as the *
Director of Nebraska Department of        *
Health and Human Services,                *
                                          *
              Defendants/Appellants.      *
                                     ___________

                             Submitted: March 16, 2005
                                Filed: May 27, 2005
                                 ___________

Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

      The Nebraska Department of Health and Human Services and the Nebraska
Department of Health and Human Services Finance and Support (collectively,
Nebraska) appeal from the district court’s denial of their motion to dismiss based on
Eleventh Amendment sovereign immunity. We reverse.



                                         -2-
                                           I.
       Bill M. and six other developmentally disabled adults (Plaintiffs) sued
Nebraska and various Nebraska officials in their official capacities, alleging
violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794; and other federal and state law provisions. Plaintiffs asserted that they are each
“eligible for, desire, have applied for or have attempted to apply for and have been
denied home and community-based Medicaid-funded services.” Compl. at 2. They
alleged that Nebraska’s withholding of funding to these services has left them without
adequate services to meet their needs and placed them “at imminent risk of
unnecessary institutionalization.” Id. Nebraska and the officials moved to dismiss
on various grounds. The district court denied the motion.

       This interlocutory appeal is limited to one aspect of the dismissal motion:
Nebraska’s contention that Eleventh Amendment immunity precludes the district
court from having subject matter jurisdiction over the Title II claim. Plaintiffs
contend that Title II and related statutory provisions ostensibly abrogate Eleventh
Amendment immunity with respect to a Title II claim. Nebraska argues, in response,
that the extension of Title II to the states is unconstitutional under our circuit’s
precedent. The United States has intervened to defend the statutory abrogation.

                                          II.
       Although we have jurisdiction over an interlocutory appeal of an order denying
Eleventh Amendment immunity under the collateral order doctrine, Maitland v.
University of Minnesota, 260 F.3d 959, 962 (8th Cir. 2001), we must also consider
the issue of standing.1 Article III standing requires a party to show actual injury, a
causal relation between that injury and the challenged conduct, and the likelihood that

      1
        Although we raised the question of standing sua sponte during oral argument,
it is elementary that standing relates to the justiciability of a case and cannot be
waived by the parties. See Sierra Club v. Robertson, 28 F.3d 753, 757 n.4 (8th Cir.
1994).

                                         -3-
a favorable decision by the court will redress the alleged injury. Minnesota Citizens
Concerned for Life v. Federal Election Comm’n, 113 F.3d 129, 131 (8th Cir. 1997)
(citing Lujan v. Defenders of the Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiffs
allege in their Title II claim (their first claim for relief) that Nebraska’s failure to
provide adequate funding “places [Plaintiffs] at risk of institutionalization.” Compl.
at 28 ¶ 117 (emphasis added). The mere risk that Plaintiffs may be institutionalized
due to the lack of adequate funding does not constitute an actual or imminent harm
sufficient to satisfy the first element of standing.2

        Plaintiffs also allege, however, in portions of their complaint incorporated by
reference into the first claim for relief, see id. at 27 ¶ 111, that they have suffered
actual harm from Nebraska’s refusal to fund home and community-based Medicaid-
funded services. See id. at 15-16 ¶ 51 (lack of funding precludes necessary
residential services in a community setting for Bill M.); id. at 17 ¶¶ 55-56 (same for
John Doe); id. at 19-20 ¶ 69 (Heather V.’s required services are underfunded, which
jeopardizes her health and safety); id. at 22 ¶ 83 (Jane S. is unable to move to a work
setting more suited to her needs due to the denial of additional funding); id. at 23 ¶¶
90-91 (Kevin V.’s services are not adequately funded to protect his health and safety);
id. at 24 ¶¶ 97-98 (same for Jennifer T.); id. at 26 ¶¶ 107-08, 110 (same for Marcus
J.). We accept as true all of the complaint’s material allegations and construe the
complaint in favor of the complaining party for purposes of deciding the question of
standing. See Shain v. Veneman, 376 F.3d 815, 817 (8th Cir. 2004). We conclude
that Plaintiffs have alleged concrete and particularized harm sufficient to satisfy the
first element of standing. Plaintiffs also meet the other standing requirements that the


      2
        The complaint alleges that the denial of funding to one of the Plaintiffs,
Marcus J., has forced him “to remain in a more restrictive institutional setting, i.e.,
a nursing home, in order to receive the services he needs.” Compl. at 26 ¶ 109.
Because Plaintiffs’ counsel informed us at oral argument that Marcus J. is no longer
in a nursing home, we need not address the issue of whether the limitation of services
to the “more restrictive institutional setting” of a nursing home would constitute
actionable harm sufficient to provide Marcus J. with standing.

                                          -4-
alleged harm be traceable to the defendant’s challenged action and redressable by the
court’s favorable decision. See Minnesota Citizens, 113 F.3d at 131 (“When
government action or inaction is challenged by a party who is a target or object of that
action . . . ‘there is ordinarily little question that the action or inaction has caused him
injury, and that a judgment preventing or requiring the action will redress it.’”)
(quoting Lujan, 504 U.S. at 561-62)).

                                          III.
      We review de novo a decision to deny or grant a motion to dismiss for lack of
subject matter jurisdiction. Metzger v. Village of Cedar Creek, Neb., 370 F.3d 822,
823 (8th Cir. 2004). We held in Alsbrook v. City of Maumelle, 184 F.3d 999, 1010
(8th Cir. 1999) (en banc), that “the extension of Title II of the ADA to the states was
not a proper exercise of Congress’s power under Section 5 of the Fourteenth
Amendment.” Accordingly, Alsbrook is dispositive here unless it has been
superseded.

       Plaintiffs and the United States argue that Alsbrook has been superseded by
Tennessee v. Lane, 124 S. Ct. 1978 (2004). The plaintiffs in Lane were paraplegics
who used wheelchairs for mobility. They alleged that the lack of reasonable access
to state and county courthouses constituted a Title II violation. Tennessee moved to
dismiss based on Eleventh Amendment immunity, and the plaintiffs argued that
Congress had abrogated Eleventh Amendment immunity under Title II. The Supreme
Court held that “Title II, as it applies to the class of cases implicating the
fundamental right of access to the courts, constitutes a valid exercise of Congress’
§ 5 authority to enforce the guarantees of the Fourteenth Amendment.” Id. at 1994
(emphasis added). The Court thus carefully limited its holding to a particularized
class of cases. See id. at 1993 (“Because we find that Title II unquestionably is valid
§ 5 legislation as it applies to the class of cases implicating the accessibility of
judicial services, we need go no further.”) (emphasis added). Several of our sister
circuits have interpreted Lane accordingly. See Cochran v. Pinchak, 401 F.3d 184

                                            -5-
(3d Cir. 2005) (refusing to extend Lane to Title II claims by disabled prison inmates);
Miller v. King, 384 F.3d 1248 (11th Cir. 2004) (same). See also Pace v. Bogalusa
City School Bd., 403 F.3d 272, 303 (5th Cir. 2005) (en banc) (Jones, J., concurring
in part and dissenting in part) (concluding, as to issue not reached by majority, that
Fifth Circuit’s prior precedent “remains valid in holding that ADA Title II, apart from
the Lane scenario, does not validly abrogate States’ Eleventh Amendment
immunity”). We conclude that Alsbrook has been modified by Lane to the extent that
a discrete application of Title II abrogation—related to claims of denial of access to
the courts—has been deemed by the Court to constitute a proper exercise of
Congress’ power. Other applications of Title II abrogation, like the one at issue here,
continue to be governed by Alsbrook.3

                                          IV.
       Plaintiffs and the United States argue that even if Nebraska were to prevail on
its interlocutory appeal, Nebraska would still have to defend the “essentially
identical” claim that Plaintiffs bring under Section 504 of the Rehabilitation Act,4 as
well as the ADA claims brought against the Nebraska officials. Because the Eleventh
Amendment provides Nebraska constitutional immunity from suit, the existence of
parallel claims is immaterial.5


      3
       Although Lane may well presage the eventual rejection of Alsbrook’s
rationale, the Supreme Court’s carefully cabined holding counsels against a
conclusion that Lane supersedes Alsbrook. Such a determination would have to come
from the Supreme Court or from an en banc decision of our court.
      4
      We held in Doe v. Nebraska, 345 F.3d 593, 599 (8th Cir. 2003), that
Nebraska’s receipt of federal funds effected a knowing waiver of its sovereign
immunity to actions brought under Section 504.
      5
       The United States’ argument that we should direct the district court to hold in
abeyance the Eleventh Amendment issue until after the Section 504 claim has been
resolved fails for the same reason.

                                         -6-
      The denial of Nebraska’s motion to dismiss based on sovereign immunity with
respect to Plaintiffs’ Title II claim is reversed, and the case is remanded to the district
court with direction to dismiss the Title II claim against Nebraska.

COLLOTON, Circuit Judge, concurring in the judgment.

       I agree that Bill M., John Doe, Jane S., and Marcus J. have Article III standing
based on their allegations of injury resulting from the State’s refusal to provide
community-based funding under Medicaid to which they claim entitlement. I also
agree that although Tennessee v. Lane, 124 S. Ct. 1978 (2004), undermined some of
the reasoning of Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999)
(en banc), our court’s en banc precedent still governs this case, which involves only
a claim for additional funding of community-based services and implicates no
fundamental constitutional right. Accordingly, I concur in the judgment.
                         ______________________________




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