                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            November 4, 2005
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk
                       ____________________

                             No. 02-20988

                       ____________________


     BLEWETT WILLIAM THOMAS

                                     Plaintiff-Appellee

          v.

     UNIVERSITY OF HOUSTON

                                     Defendant-Appellant


_________________________________________________________________

           Appeal from the United States District Court
           for the Southern District of Texas, Houston
_________________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges

PER CURIAM:*

     Our recent decisions in Miller v. Tex. Tech Univ. Health

Sci. Ctr., 421 F.3d 342 (5th Cir. 2005) (en banc), and Pace v.

Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005) (en banc),

resolve all of the remaining issues raised in this appeal.        We

therefore AFFIRM the district court’s holding that the defendant-

appellant, the University of Houston, is not immune under the

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Eleventh Amendment to the suit of the plaintiff-appellee, Blewett

William Thomas, based on § 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794.

                            DISCUSSION

     Plaintiff-appellee Blewett William Thomas (“Thomas”) alleges

that the Social Security Administration found him to be

temporarily and totally disabled as a result of stress and

illness resulting from his employment as a litigation attorney.

To rectify this disability, Thomas claims that his physicians

directed him to suspend all employment and undertake a

rehabilitation program.   Specifically, Thomas’s physicians

allegedly advised him to eschew litigation and to return to a

formal academic environment.   This suit resulted.

     To fulfill his rehabilitation program, Thomas repeatedly

applied to the Master of Laws (“LL.M”) program offered by the Law

Center of defendant-appellant, the University of Houston

(“University of Houston” or “University”), beginning in October

of 1998.   In conjunction with this first application, Thomas

allegedly informed the University about his disability status and

the nature of his planned rehabilitation.   The University

rejected this initial application to the LL.M program at the Law

Center, but Thomas did win admission to the University’s

Department of Foreign and Classical Languages as a post-

baccalaureate student in Russian Studies.   Undaunted by his


                                 2
initial failure, and apparently unsatisfied with Russian Studies,

Thomas redoubled his efforts to enter the University’s LL.M

program.   Unfortunately, his subsequent applications met with no

greater success than his initial efforts.

     Following at least three rejections by the University’s LL.M

program, Thomas filed this suit in the Southern District of

Texas, Houston Division, on February 14, 2001.   In his complaint,

Thomas alleged the University committed multiple violations of

his constitutional rights as part of a continuing pattern of

discrimination and retaliation against him during the period of

October 15, 1998 through March 30, 2000.2   The University moved

to dismiss, claiming Eleventh Amendment immunity.   The district

court dismissed most of Thomas’s claims, but it refused to

dismiss his claim under § 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794 (“§ 504”).3   See District Ct. Op. at 6-8

(declining to dismiss Thomas’s Rehabilitation Act claim, after

     2
        Thomas’s complaint also alleged that the University
breached duties of good faith and fair dealing during his
application process. This claim was dismissed along with most of
his constitutional claims by the district court.
     3
        Section 504 of the Rehabilitation Act of 1973 provides
that “[n]o otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance . . . .” 29
U.S.C. § 794(a). This “antidiscrimination mandate” was enacted
to “enlist[] all programs receiving federal funds” in Congress’s
attempt to eliminate discrimination against individuals with
disabilities. Sch. Bd. of Nassau County v. Arline, 480 U.S. 273,
286 n. 15, 277 (1987).

                                 3
surveying recent precedent from this court and other

jurisdictions about waiver of sovereign immunity for states that

accept federal funds under the Rehabilitation Act).

     The University appealed the district court’s decision to

this court.   On January 17, 2003, we granted the United States’s

unopposed motion to intervene to defend the constitutionality of

42 U.S.C. § 2000d-7.    We held this case in abeyance pending our

en banc opinions in Pace and Miller.

     The only issue before us in this appeal is whether the

University, an undisputed arm of the state of Texas, can assert

sovereign immunity under the Eleventh Amendment against Thomas’s

§ 504 claims.    “We review Eleventh Amendment immunity

determinations . . . de novo as a question of law.”       United

States v. Tex. Tech Univ., 171 F.3d 279, 288 (5th Cir. 1999)

(citing Ussery v. Louisiana, 150 F.3d 431, 434 (5th Cir. 1998)).

The statute at issue is 42 U.S.C. § 2000d-7, which reads 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 section 504 of
     the Rehabilitation Act of 1973 . . . or the provisions
     of any other Federal statute prohibiting discrimination
     by recipients of Federal financial assistance.

Congress enacted this provision in order to demonstrate to state

agencies that eligibility for federal financial assistance is

conditional upon waiver of Eleventh Amendment immunity to

discrimination suits under the identified statutes.       See Pederson

                                  4
v. La. State Univ., 213 F.3d 858, 875-76 (5th Cir. 2000)

(concluding that Section 2000d-7 validly conditions acceptance of

federal funds on a waiver of sovereign immunity to claims under

Title IX); see also Lane v. Pena, 518 U.S. 187, 197-200 (1996).

     This court has resolved this precise issue in two recent en

banc decisions.    Then as now, we held that a state “waive[s]

Eleventh Amendment immunity from suit under § 504 by accepting

federal funds under such circumstances [the express conditions of

42 U.S.C. § 2000d-7].”    Miller, 421 F.3d at 347 (citing Pace, 403

F.3d at 272).4    In a supplemental letter brief filed after our

recent decisions, the University concedes that “[t]his appeal

presents the same issues, and is thus governed by Miller.”

(Appellant’s Supplemental Letter Br. at 1.)    We agree.

Accordingly, the decision of the district court is

     AFFIRMED.




     4
        Our holding in this matter accords with the decisions of
our sister circuits. As we stated in Miller,
     [w]e agree with the four circuit courts that have
     addressed this issue and concluded that, if the
     involved state agency or department accepts federal
     financial assistance, it waives its Eleventh Amendment
     immunity even though the federal funds are not
     earmarked for programs that further the anti-
     discrimination and rehabilitation goals of § 504.
421 F.3d at 349 (citing Barbour v. Wash. Metro. Area Transit
Auth., 374 F.3d 1161 (D.C. Cir. 2004); Lovell v. Chandler, 303
F.3d 1039 (9th Cir. 2002); Koslow v. Pennsylvania, 302 F.3d 161
(3d Cir. 2002); Jim C. v. United States, Atkins Sch. Dist., 235
F.3d 1079 (8th Cir. 2000) (en banc)).

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