           Case: 15-14032   Date Filed: 05/25/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14032
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:14-cv-00117-WS-CAS



EPHRIM MCMULLEN,

                                                          Plaintiff - Appellant,

versus

WAKULLA COUNTY BOARD OF COUNTY COMMISSIONERS,

                                                         Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                              (May 25, 2016)

Before WILLIAM PRYOR, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
               Case: 15-14032    Date Filed: 05/25/2016   Page: 2 of 12


       Plaintiff Ephrim McMullen (“Plaintiff”) sued Defendant Wakulla County

Board of Commissioners (“Defendant”) for disability discrimination under the

Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court granted summary

judgment to Defendant after finding that the Rehabilitation Act did not apply. We

affirm.

I.     Background

       Plaintiff became a volunteer firefighter in Wakulla County in 2004. In

August 2013, the County’s fire chief and public safety director did not approve

Plaintiff’s nomination for battalion chief of the Apalachee Bay Volunteer Fire

Department (a paid position), because Plaintiff suffered from an unrepaired hernia.

According to Defendant, this medical condition disqualified Plaintiff from being a

firefighter.

       Plaintiff alleged one count of disability discrimination under the

Rehabilitation Act in his Second Amended Complaint. The Rehabilitation Act

makes it unlawful for any “program or activity” receiving federal financial

assistance to discriminate on the basis of disability. 29 U.S.C. § 794. Defendant

moved for summary judgment on the sole ground that the County did not receive

any federal assistance for its Fire Rescue Department or for the provision of fire

services, and thus the Rehabilitation Act did not apply. Defendant cited Doyle v.

Univ. of Ala. in Birmingham, 680 F.2d 1323, 1326–27 (11th Cir. 1982), which


                                          2
              Case: 15-14032     Date Filed: 05/25/2016   Page: 3 of 12


narrowly interpreted “program or activity” to mean only the specific parts of a

governmental unit that directly receive federal financial assistance. But in the

Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988),

Congress amended the definition of “program or activity” to include “all of the

operations of . . . a department, agency, special purpose district or other

instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A)

(emphasis added). Plaintiff thus argued that the relevant entity to consider was the

County as a whole, such that if any part of the County received federal funds, the

Rehabilitation Act applied.

      The district court recognized that Congress had broadened the definition of

“program or activity,” and instead of citing Doyle, the court cited cases from other

Circuits interpreting the amended definition. Still, the court agreed with Defendant

that the relevant entity to consider was the County’s Fire Rescue Department, not

the entire County. The Fire Rescue Department comprises three divisions: fire

services, emergency medical services (“EMS”), and animal control. Under the

expanded definition, the court reasoned, the Department was covered by the

Rehabilitation Act if any of its divisions received federal funds. The court went on

to hold that no division received such funds and granted summary judgment to

Defendant.




                                           3
              Case: 15-14032     Date Filed: 05/25/2016   Page: 4 of 12


II.   Analysis

      We review a district court’s grant of summary judgment de novo. Holloman

v. Mail-Well Corp., 443 F.3d 832, 836–37 (11th Cir. 2006). Summary judgment is

appropriate where there is no genuine issue of material fact. Fed. R. Civ. P. 56(c).

Plaintiff raises two arguments on appeal: (1) the district court erred by applying

Doyle’s narrow interpretation of the Rehabilitation Act, and (2) there was

conflicting evidence about whether the Fire Rescue Department received federal

funds, but the district court resolved factual disputes when it sided with Defendant.

      A.     Scope of “Program or Activity”

      This Court has not directly addressed whether Doyle remains good law in

light of the Restoration Act’s amendment to the Rehabilitation Act. In Doyle, we

held that it was not sufficient “simply to show that some aspect of the relevant

overall entity or enterprise receives or has received some form of input from the

federal fisc.” 680 F.2d at 1326 (quoting Brown v. Sibley, 650 F.2d 760, 769 (5th

Cir. Unit A July 1981)). Instead, “[a] private plaintiff in a [Rehabilitation Act]

case must show that the program or activity with which he or she was involved, or

from which he or she was excluded, itself received or was directly benefited by

federal financial assistance.” Id. at 1326–27 (quoting Brown, 650 F.2d at 769).

The Supreme Court adopted the same narrow interpretation of “program or

activity” for Title IX and Rehabilitation Act cases in Grove City College v. Bell,


                                          4
              Case: 15-14032     Date Filed: 05/25/2016    Page: 5 of 12


465 U.S. 555 (1984), and Consolidated Rail Corporation v. Darrone, 465 U.S. 624

(1984), respectively.

      Congress then passed the Restoration Act “to restore the prior consistent and

long-standing executive branch interpretation and broad, institution-wide

application of” civil rights legislation, including the Rehabilitation Act. Pub. L.

No. 100-259, § 2(2). The Senate Report even declared that the purpose of the

legislation was “to overturn the Supreme Court’s 1984 decision in Grove City

College v. Bell” and, by extension, Consolidated Rail Corporation. S. Rep. No.

100-64, at 2 (1988), as reprinted in 1988 U.S.C.C.A.N. 3, 3–4. To that end,

Congress amended the definition of “program or activity” to include “all of the

operations of . . . a department, agency, special purpose district, or other

instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A).

The definition also covered, in the case of federal assistance to a State or local

government, the State or local government that distributes the assistance and each

department or agency that receives it. § 794(b)(1)(B).

      Plaintiff contends that the expanded definition means that he need only show

that the County as a whole received federal funds, not the Fire Rescue Department

or, as our precedent in Doyle would require, the fire services division directly. We

are generally bound by a prior panel decision until that decision is overruled by the

Supreme Court or this Court sitting en banc, United States v. Steele, 147 F.3d


                                           5
              Case: 15-14032      Date Filed: 05/25/2016    Page: 6 of 12


1316, 1318 (11th Cir. 1998) (en banc), but “where our authority derives from

Congress, . . . a clear change in the law by Congress could . . . justify a panel of

this court in not following an earlier panel’s decision, where the prior panel’s

decision was based on legislation that had been changed or repealed.” Sassy Doll

Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 840 (11th Cir. 2003)

(quoting United States v. Woodard, 938 F.2d 1255, 1258 n.4 (11th Cir. 1991)).

Because Congress amended the definition of “program or activity” for the purpose

of overturning Grove City College and Consolidated Rail Corporation, our

identical interpretation in Doyle is no longer good law. See Lussier v. Dugger, 904

F.2d 661, 664–65 (11th Cir. 1990) (noting that “the continued vitality of Grove

City was effectively eliminated by . . . the passage of the Civil Rights Restoration

Act”). We have not, however, construed the new definition of “program or

activity” in light of the Restoration Act.

      “The starting point for all statutory interpretation is the language of the

statute itself.” United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir. 1999).

We read a statute’s words “as they are commonly and ordinarily understood, and

we read the statute to give full effect to each of its provisions.” Id. We therefore

find that “all of the operations of . . . a department, agency, special purpose district,

or other instrumentality of a State or of a local government,” 29 U.S.C.

§ 794(b)(1)(A), sweeps broader than our previous interpretation under Doyle. But


                                             6
              Case: 15-14032     Date Filed: 05/25/2016    Page: 7 of 12


the ordinary meaning of these terms cannot be construed to mean the County as a

whole, as Plaintiff suggests. The relevant unit is “a department, agency, special

purpose district or other instrumentality” of the County, such as the Fire Rescue

Department. So, if any operation of that Department—including fire services,

EMS, or animal control—receives federal funds, the whole Department is covered

by the Rehabilitation Act. On the other hand, Plaintiff cannot rely on funds

received by other County departments unconnected to his claim to show that the

Rehabilitation Act applies.

      Our reasoning is consistent with other Circuits that have considered the

Rehabilitation Act’s amended language. In Schroeder v. City of Chicago, 927 F.2d

957 (7th Cir. 1991), the Seventh Circuit explained that the Restoration Act was

intended to overrule Grove City College and held that “‘program or activity’ was

expanded from a specific program or specific activity to ‘all the operations’ of the

university or hospital or other institution that conducted the program or activity . . .

But the amendment was not . . . intended to sweep in the whole state or local

government, so that if two little crannies (the personnel and medical departments)

of one city agency (the fire department) discriminate, the entire city government is

in jeopardy of losing its federal financial assistance.” Id. at 962.

      The Eighth Circuit similarly held that the City of Omaha’s Public Safety

Department was the defining unit in a Rehabilitation Act suit, not the Fire Division


                                           7
              Case: 15-14032     Date Filed: 05/25/2016   Page: 8 of 12


within that department. Thomlison v. City of Omaha, 63 F.3d 786, 789 (8th Cir.

1995). So, while “the Fire Division did not receive any federal assistance directly,

other Public Safety Department divisions, including the Police Division, received

federal funds.” Id. As a result, the entire Public Safety Department was subject to

the Rehabilitation Act. Id. In reaching this conclusion, the court did not suggest

that federal funds received by other departments would trigger coverage under the

Rehabilitation Act.

      Moreover, the Third Circuit rejected the argument that an entire state is

liable simply because one of its departments or agencies receives or distributes

federal funds. See Koslow v. Pennsylvania, 302 F.3d 161, 171 (3d Cir. 2002).

Importantly, the Third Circuit observed that “if the entire state government were

subject to [the Rehabilitation Act] whenever one of its components received

federal funds, subsection (b)(1)(B)[, which provides that both the government

entity that distributes federal funds and the entity that receives them are covered by

the Rehabilitation Act,] would be redundant.” Id.; accord Arbogast v. Kan., Dep’t

of Labor, 789 F.3d 1174, 1184 (10th Cir. 2015) (“Generally, courts considering the

scope of a state entity’s waiver under the Rehabilitation Act acknowledge that the

definition of ‘program or activity’ was not intended to sweep in the whole state or

local government whenever one subdivision discriminates. Rather, courts interpret

the phrase ‘program or activity’ to only cover all the activities of the department or


                                          8
              Case: 15-14032      Date Filed: 05/25/2016    Page: 9 of 12


the agency receiving federal funds.” (internal quotation marks, brackets, and

citations omitted)).

      In sum, Doyle’s narrow interpretation of “program or activity” is no longer

good law. The district court correctly found that the relevant unit to consider was

the Fire Rescue Department and all of its operations, not the fire services division

alone or the County as a whole.

      B.     There Is No Evidence that the Fire Rescue Department Received
             Federal Funds

      Having concluded that the Fire Rescue Department is the relevant entity to

examine, we turn to whether there was evidence that any of the Department’s

operations received federal financial assistance. Plaintiff first asserts that

Defendant received annual “payments in lieu of taxes” from the federal

government, which payments benefitted the Fire Rescue Department. These

payments help offset lost property taxes from tax-immune federal land such as

wilderness areas and national parks located in the County. See 31 U.S.C.

§ 6902(a)(1) (providing that “the Secretary of the Interior shall make a payment for

each fiscal year to each unit of general local government in which entitlement land

is located”). Plaintiff notes that the payments are then deposited into the County’s

general revenue fund and are used to support EMS and animal control—units of

the Fire Rescue Department.



                                           9
             Case: 15-14032     Date Filed: 05/25/2016    Page: 10 of 12


       The Rehabilitation Act does not define federal financial assistance, but we

have held that it means “the federal government’s provision of a subsidy to an

entity,” as opposed to providing compensation. Shotz v. Am. Airlines, Inc., 420

F.3d 1332, 1335 (11th Cir. 2005). The relevant inquiry in determining whether

certain federal funds constitute financial assistance turns on whether Congress

intended to compensate or provide a subsidy. Id. at 1336. The Supreme Court has

observed that Congress passed the Payment in Lieu of Taxes Act, 31 U.S.C.

§ 6901 et seq., to “compensate[] local governments for the loss of tax revenues

resulting from the tax-immune status of federal lands . . . located in their

jurisdictions, and for the cost of providing services related to these lands.”

Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 258 (1985)

(emphasis added). We therefore conclude that these payments are compensation

and do not amount to financial assistance within the meaning of the Rehabilitation

Act.

       Plaintiff also argues that it was disputed whether the Fire Rescue

Department bought equipment like breathing apparatuses using federal funds.

Plaintiff relies on deposition testimony of the County Administrator, who testified

that the County received payments in lieu of taxes and grants for the Sheriff’s

Department. When asked whether the County received federal money for

firefighting, the County Administrator responded, “Other than through grants for


                                          10
              Case: 15-14032   Date Filed: 05/25/2016   Page: 11 of 12


buying some equipment or something like that, that would be about it.” Plaintiff

argues that this testimony “shows that [the Administrator was] aware that the Fire

Rescue Department did, in fact, receive federal funds for ‘buying some

equipment.’” As Defendant argues, however, the Administrator later said that he

did not actually know of any federal grants to that Department. The Administrator

was asked if the Department had purchased a fire truck with federal assistance, but

he said the Department had made no such purchase during his tenure. When asked

what else the Department had purchased with federal money, he responded, “I am

not sure. It would have been small apparatuses through small funds like, you

know, $2,000 here or $6,000 there for breathing apparatuses, et cetera. Nothing

big.” And then the Administrator said that the County had methods of tracking

grant money, and the best person to answer questions about those funds was the

County’s Finance Director, who in turn stated that he had thoroughly reviewed

Wakulla County’s recent budgets and confirmed that the County had not received

or spent any federal financial assistance in connection with the Fire Rescue

Department.

      Considered in context, the County Administrator’s testimony showed he was

unsure if the Fire Rescue Department had received any federal grants. His

reference to breathing apparatuses was only speculation of what the grants “would

have been.” Plaintiff contends that when construing the facts in his favor, we must


                                         11
               Case: 15-14032        Date Filed: 05/25/2016       Page: 12 of 12


assume the Administrator meant that the Fire Rescue Department had received

federal funds, thus creating a genuine factual dispute. But an issue of fact is not

genuine unless a reasonable jury could return a verdict in favor of the nonmoving

party. Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013). And here the

record does not support the inference that the Administrator knew the Fire Rescue

Department received federal funds and was simply unable to remember the specific

grants, as Plaintiff insists. See id. (court should not adopt plaintiff’s version of

facts when that version “is blatantly contradicted by the record” (quoting Scott v.

Harris, 550 U.S. 372, 380 (2007))). Instead, the Administrator deferred to the

County’s Finance Director, who stated that the Department did not receive any

federal funds. There is thus no genuine dispute that the Department did not receive

federal financial assistance. 1 Consequently, the Rehabilitation Act does not apply,

and the district court correctly granted summary judgment to Defendant.

III.   Conclusion

       For the reasons discussed above, we affirm the order of the district court

granting summary judgment to Defendant.

       AFFIRMED.


1
  Plaintiff mentions several other sources of federal assistance, none of which aided the Fire
Rescue Department. And while Plaintiff argues that the Department received certain FEMA
funds, he fails to cite to any such evidence in the record. In fact, the County Administrator said
that FEMA assistance went into a separate fund, and the Public Safety Director said that the Fire
Department did not receive any FEMA aid.
                                                12
