                                               United States Court of Appeals
                                                        Fifth Circuit
                                                     F I L E D
             REVISED OCTOBER 27, 2005
                                                     August 15, 2005
          UNITED STATES COURT OF APPEALS
               For the Fifth Circuit             Charles R. Fulbruge III
                                                         Clerk


                   No. 02-10190



      LUCINDA G. MILLER; ELAINE KING-MILLER,

                                      Plaintiffs-Appellees,

                      VERSUS


TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, ET AL

                                      Defendants-Appellants.


   Appeal from the United States District Court
        For the Northern District of Texas



               ____________________

                 Consolidated with
                    No. 02-30318
                    No. 02-30369
                ___________________


                 THEODORE JOHNSON,

                                        Plaintiff-Appellee,



                      VERSUS



     LOUISIANA DEPARTMENT OF EDUCATION, ET AL

                                                 Defendants,
       LOUISIANA DEPARTMENT OF EDUCATION; STATE OF LOUISIANA;
           PRESIDENT OF LOUISIANA STATE UNIVERSITY SYSTEM;
                           BOARD OF REGENTS

                                                Defendants-Appellants,

                                   and

                               LYNN AUGUST

                                                     Plaintiff-Appellee
                                 VERSUS

                         SUZANNE MITCHELL, ET AL

                                                   Defendants-Appellants


          _________________________________________________

            Appeals from the United States District Court
                For the Eastern District of Louisiana
          ________________________________________________


Before KING, Chief Judge and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART,
DENNIS, CLEMENT, and PRADO, Circuit Judges.*

DAVIS AND WIENER, Circuit Judges:

       This consolidated appeal presents the same issue we recently

resolved en banc in Pace v. Bogalusa City School Board:1         Does a

state waive its Eleventh Amendment immunity from suit in federal

court under § 504 of the Rehabilitation Act of 19732 when it

accepts federal funds that are granted by Congress under authority


  *
   Judge Owen was not a member of the court when this case was
submitted to the court en banc and did not participate in this
decision.
  1
      403 F.3d 272 (5th Cir. 2005) (en banc).
  2
      29 U.S.C. § 794.

                                    2
of the Constitution’s Spending Clause and expressly conditioned on

waiver of immunity from § 504?       For reasons that follow, we find no

merit in appellants’ arguments and reaffirm our conclusions in Pace

that acceptance of such federal funds operates to waive a State’s

Eleventh Amendment immunity under the express conditions of 42

U.S.C. § 2000d-7.3


     3
     The factual and legal background of this consolidated appeal is
accurately and succinctly presented in the panel opinions:

A.       Johnson/August v. Louisiana Dep’t of Education, 330 F.3d 362, 363-
         64 (5th Cir. 2003).

            Appellee Johnson was a full time student at the University
         of New Orleans (“UNO”) on financial aid. He is disabled by
         a partial paralysis of his left foot. In February 2000, a
         medical emergency caused Johnson to withdraw from UNO. Four
         months later, UNO revoked Johnson’s eligibility for financial
         aid.    Johnson successfully appealed the decision.       The
         appeals committee, however, did not inform Johnson of its
         decision until after the fall 2000 semester had begun; the
         committee also imposed academic requirements to maintain his
         eligibility for financial aid. Johnson asserts that because
         of his late start in fall semester classes, he was unable to
         comply with the academic requirements. In January 2001, UNO
         denied Johnson financial aid for the spring semester.
         Johnson filed suit against the Louisiana Department of
         Education, the State of Louisiana, the President of the
         Louisiana State University System, the Louisiana Board of
         Regents, and UNO under 42 U.S.C. § 1983, Title II of the
         Americans with Disabilities Act, and § 504 of the
         Rehabilitation Act, alleging discrimination against disabled
         students and failure to provide reasonable accommodations.

            [Lynn] August, a blind man, worked as a computer
         instructor for the Louisiana Department of Social Services
         (“DSS”).   In June 2000, DSS eliminated August’s teaching
         duties, averring that August failed to submit “manual
         materials” required for use in the computer course. August
         contended...that he submitted the necessary material at the
         same time as a sighted instructor whose materials were
         approved. August brought various claims for damages against
         the DSS and the three state employees in their official
         capacities, including claims under the ADA and the
         Rehabilitation Act ( § 504).

                                      3
                                  I.     BACKGROUND

          Louisiana’s Department of Education (“LADOE”) and Department

of       Social    Services   (“DSS”)4   and   Texas   Tech   University   Health

Sciences          Center   (“TTUHSC”)    (collectively   “defendants”)     appeal

rulings of the district courts, which held that, by accepting

federal funds offered on explicit conditions of waiver, defendants

in fact waived their right to Eleventh Amendment5 immunity pursuant


             Separate district courts in the Eastern District of
          Louisiana dismissed all claims against the defendants based
          on state sovereign immunity except for those under § 504 of
          the Rehabilitation Act. The defendants appeal, arguing that
          state sovereign immunity bars the appellees’ § 504 claims.

B.          Miller v. Texas Tech University Health Sciences Center,
            330 F.3d 691, 691 (5th Cir. 2003).

             King-Miller began working as an administrator and
          professor at [Texas] Tech in 1997. She notified Tech that
          she suffered from a degenerative eye condition in August
          1998; she was diagnosed as legally blind in 1999. In 2000,
          she sued Tech for allegedly failing to accommodate her
          disability in violation of § 504, which prohibits
          discrimination against the disabled by programs receiving
          federal funds.

             ...Tech moved to dismiss on the basis of state sovereign
          immunity. The district court denied the motion, and Tech
          took this interlocutory appeal.

     4
    The case before the panel in Johnson was a consolidated appeal by
LADOE and the Department of Social Services for the State of Louisiana
(“DSS”). LADOE and DSS consolidated their arguments into one brief for
this rehearing en banc, and therefore all arguments accredited to LADOE
are also made on behalf of DSS.
     5
         The Eleventh Amendment to the United States Constitution states:

          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.

                                           4
to 46 U.S.C. § 2000d-7,6 and were therefore amenable to suit in

federal court for § 504 violations.       Later, a panel of this court

in Pace v. Bogalusa City School Board7 (“Pace I”) held that,

despite the express provision in the grant that entitlement of the

grantee to accept the funds was conditioned on such a waiver, a

State did not waive Eleventh Amendment immunity from suit under §

504 by accepting federal funds at a time when, based on the then-

current state of the pertinent case law, the State had reason to

believe that it had no such immunity to waive.       Two panels of this

court, relying on Pace I, reversed the district courts’ denials of

Eleventh Amendment Immunity and dismissed the plaintiffs’ claims

under § 504.8

       We later reheard Pace en banc and held that, then as now, a

State did waive Eleventh Amendment immunity from suit under § 504

by accepting federal funds under such circumstances (“Pace II”).9

Prior to rehearing Pace en banc, we had agreed to rehear the

instant cases en banc, but postponed rehearing them pending our

  6
      Section 2000d-7 (a)(1) provides in pertinent 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.
  7
      325 F.3d 609 (5th Cir. 2003).
   8
     See Miller v. Tex. Tech Univ. Health Sci. Ctr., 330 F.3d 691 (5th
Cir. 2003); Johnson v. La. Dept. of Educ., 330 F.3d 362 (5th Cir. 2003).
  9
      403 F.3d 272.

                                      5
decision in Pace II.

       After Pace II was announced, we asked the parties in these

cases to submit supplemental briefs explaining which of their

arguments regarding Eleventh Amendment immunity from suits under §

504 remained viable and which had been foreclosed.      In response,

the defendants conceded that Pace II forecloses all their arguments

except three.

       First, both LADOE and TTUHSC contend that no valid waiver of

Eleventh Amendment immunity occurred because, even though they

received federal funds, none of the state agencies was expressly

authorized by state law to waive its respective state’s immunity

from suit under § 504.      Second, TTUHSC contends that Pace II did

not address the issue whether § 504 and § 2000d-7 place conditions

on federal funds that are not reasonably related to the purpose of

the expenditure, which is part of the test for valid Spending

Clause legislation set forth by the Supreme Court in South Dakota

v. Dole.10    Third, LADOE asserts that it did not “knowingly waive”

Eleventh Amendment immunity under § 2000d-7 by accepting federal

funds, contending that this argument, although rejected in Pace II,

should be reexamined in light of the Supreme Court’s subsequent

decision in Jackson v. Birmingham Board of Education.11


           II.   STATE IMMUNITY UNDER THE ELEVENTH AMENDMENT


  10
       483 U.S. 203, 207 (1987).
  11
       ___ U.S. ___, 125 S. Ct. 1497 (2005).

                                    6
A.        Express Authority to Waive Immunity

          We consider first defendants’ argument that they did not waive

their states’ Eleventh Amendment immunity from suit under § 504

because they lacked express authorization to do so under state law.

Defendants do not challenge that they were authorized under state

law to accept federal funds or that each received federal funds.12

Defendants insist, however, that as state agencies, their authority

to accept federal funds is insufficient to waive Eleventh Amendment

immunity, which, they argue, cannot be validly waived without

express statutory authority.

          Defendants’ argument fails to recognize that grant programs



     12
      LADOE is authorized to accept federal funds pursuant to LA. REV.
STAT. ANN. § 17:24 (C), which provides in pertinent part:

          The board [LADOE] is hereby designated as the State Agency
          with respect to federal funds for those programs under the
          jurisdiction of the board. The State Department of Education
          shall administer and distribute all federal funds received
          for the benefit of those phases of education under the
          jurisdiction of the board. (emphasis added).

   Similarly, LA. REV. STAT. ANN. § 46:51(6) provides that the
Department of Social Services of Louisiana [DSS] may “[a]ct as the
agent of the state to cooperate with the federal government...and
in the administration of federal funds granted in the state to aid
in the furtherance of any functions of the department, and be
empowered to meet such federal standards as may be established for
the administration of such federal funds.” (emphasis added).

   Likewise, TEX. EDUC. CODE. ANN. § 110.08, which governs the funding of
TTUHSC, provides in pertinent part, “The board [of TTUHSC], in its
discretion, may accept and administer grants and gifts from the federal
government...for the use and benefit of the Health Sciences Center.”

                                       7
based on the Spending Clause are to be interpreted under ordinary

contractual principles.13         In these cases, the defendants were

authorized by the State to accept the benefits of substantial sums

of federal Spending Clause money burdened with the clearly stated

condition under § 2000d-7 that acceptance waives immunity from suit

in federal court. The statutory powers of attorney provided to

defendants     by    their   respective     state   legislatures   to    accept,

administer, and expend such federal funds necessarily includes the

authorization to accept the conditions that come along with those

funds. Clothed with this authority, the defendants held themselves

out    to   have    authority   from   their   states   to   comply     with   the

conditions imposed by Congress in the statute.               These conditions

are inseparable from the offer of the funds:            The States (or their

authorized agencies) may reject the condition of waiver of Eleventh

Amendment immunity by rejecting the funds, or they may accept the

funds and the conditions; they cannot, however, accept the benefits

of the funds and reject the inextricably intertwined condition of

waiver by claiming post hoc that the delegation of authority to

accept the funds did not carry with it the authority to waive

immunity.     This is hornbook contract and agency law.

       Therefore, we reject defendants’ argument that they retain


  13
       Barnes v. Gorman, 536 U.S. 181, 186 (2002).

                                        8
Eleventh Amendment immunity because they lacked express statutory

authority to waive their states’ Eleventh Amendment immunity.14

B.        Relatedness

          We next address TTUHSC’s argument that § 504 and § 2000d-7 are

unconstitutional Spending Clause legislation because they place

conditions on federal grants that are not reasonably related to the

purpose of the expenditure.           This is often referred to as the

“relatedness” prong of the Dole test for valid Spending Clause

legislation.15        According to TTUHSC, they are not governed by § 504

because none of the federal funds they received were earmarked for

§     504     goals     of   preventing       disability   discrimination   or

accommodating disability.         TTUHSC urges that, if we determine that

the immunity waiver condition imposed by § 504 is not limited to

Rehabilitation Act funding but that they accompany all federal

funding, we should hold that § 504 fails the “relatedness” prong of

the Dole test.

          TTUHSC failed to raise this argument in its briefs before


     14
     This disposition makes it unnecessary for us to consider what
effect the Supreme Court’s decision in Lapides v. Board of Regents of
the University System of Georgia, 535 U.S. 613 (2002), has on this
issue.
     15
     Under Dole, conditions attached to Spending Clause legislation are
valid only if they are (a) attached to expenditures that benefit the
general welfare; (b) unambiguous; (c) reasonably related to the purpose
of the expenditure to which they are attached; and (d) not in violation
of an independent constitutional provision. 483 U.S. at 207-08.

                                          9
either the district court or the original panel of this court.

Neither did it argue the point in its original en banc brief.                     In

Pace II, we concluded that the state defendant had waived this

“relatedness” argument because it failed to argue the point before

the original panel and did not argue it in its en banc brief beyond

a bare assertion.16       The maxim is well established in this circuit

that a party who fails to make an argument before either the

district court or the original panel waives it for purposes of en

banc consideration.17

          If we are required to address this argument because it relates

to        Eleventh   Amendment    immunity,   and        as   such    may    be   a

“jurisdictional” defense that cannot be waived,18 we reject it.                   We

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


     16
          403 F.3d at 281 n.32.
     17
     See Communication Workers of America v. Ector County, 392 F.3d 733,
748 (5th Cir. 2004) (failure to brief an issue constitutes waiver on
appeal); Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 (5th
Cir. 2004) (party waived argument not included in original brief to
panel); Cooper Ind. v. Tarmac Roofing, Inc., 276 F.3d 704, 711 (5th Cir.
2002) (argument not raised before original panel waived); and Lowry v.
Bankers Life and Cas. Retirement Plan, 871 F.2d 522, 525 (5th Cir. 1989)
(refusing to consider an argument raised for the first time in a
petition for rehearing). See also FED. R. APP. P. 28 (a)(9)(A) (stating
that an appellant’s brief must contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.”).
     18
     See Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) (because defense
of Eleventh Amendment immunity is a jurisdictional bar to the
plaintiff’s suit, court of appeal did not err in considering defense
when it was not argued before the district court).

                                       10
Amendment immunity even though the federal funds are not earmarked

for     programs     that    further         the    anti-discrimination       and

rehabilitation goals of        § 504.19 Chief Judge Scirica’s persuasive

opinion for the Third Circuit in Koslow is particularly helpful in

explaining this point.

       In that case, the State of Pennsylvania received federal

financial    assistance     for   the   State      Criminal   Alien   Assistance

Program, established to alleviate costs states incur in imprisoning

illegal aliens who commit state offenses.20                The state furnished

these funds to the Pennsylvania Department of Corrections.21                  The

plaintiff,     Mr.   Koslow,      was   employed      by   the   Department   of

Corrections as a supervisor at the prison’s water treatment plant

and brought a § 504 suit against his employer for failing to

accommodate his disability following a work related injury.22

       The state defendants argued that the federal government’s

interest in the federally funded program was too attenuated from

the general waiver of immunity set forth in § 2000d-7 respecting

claims under § 504.     The Koslow court disagreed and concluded that

receipt of federal funding by an agency operated as a waiver of

  19
     See Barbour v. Washington Metropolitan Area Transit Authority, 374
F.3d 1161 (D.C. Cir. 2004); Lovell v. Chandler, 303 F.3d 1039 (9th Cir.
2002); Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir.
2002); Jim C. V. United States, Atkins School District, 235 F.3d 1079
(8th Cir. 2000) (en banc).
  20
       Koslow, 302 F.3d at 166-67.
  21
       Id. at 167.
  22
       Id. at 165.

                                        11
that agency’s Eleventh Amendment immunity even though the funds are

not earmarked for § 504 purposes.        The court gave three reasons for

its conclusion.      First, the panel found that:

       [t]hrough the Rehabilitation Act [§ 504], Congress has
       expressed a clear interest in eliminating disability-
       based discrimination in state departments or agencies.
       That interest, which is undeniably significant and
       clearly reflected in the legislative history, flows with
       every dollar spent by a department or agency receiving
       federal funds. The waiver of the Commonwealth’s immunity
       from Rehabilitation Act claims by Department of
       Corrections employees furthers that interest directly.23


       Second,   §   2000d-7   limits    the   waiver   to   the   agency   or

department that receives federal funds and does not require waiver

by other agencies or the state as a whole.24            The court concluded

that “[t]his limitation helps ensure the waiver accords with the

‘relatedness’ requirement articulated in Dole.”25

       Finally, the court observed that, as a practical matter, § 504

funds received by specific state departments or agencies are

frequently not tracked, making it virtually impossible to determine

how the agency spent the federal dollars and whether the federal

funds paid for the affected employee’s salary or benefits.26

       For the same reasons articulated in Koslow, we reject the

TTUHSC’s argument that the substantial federal financial assistance


  23
       Id. at 175-76 (internal citation omitted).
  24
       Id. at 176.
  25
       Id.
  26
       Id.

                                    12
for education it received is unrelated to the goals of § 504 and

therefore fails Dole’s “relatedness” requirement.

C.         Jackson v. Birmingham Board of Education

           Finally, LADOE argues that it did not “knowingly” waive

Eleventh Amendment immunity from suit in federal court under § 504

in accordance with § 2000d-7 by accepting federal funds.                   As LADOE

acknowledges, this argument was considered and rejected by our en

banc majority in Pace II.27                 LADOE nevertheless argues that the

Supreme         Court’s     decision   in    Jackson   v.    Birmingham   Board   of

Education,28 requires us to re-examine the issue, repudiate the

reasoning of Pace II, and adopt the analysis of Pace I.                   In Pace I,

the panel held that the state defendant did not “knowingly” waive

its Eleventh Amendment immunity by accepting federal funds because,

at        the   time   it   received   those      funds,    the   prevailing   legal

authorities suggested that it had no Eleventh Amendment immunity

from suits under § 504.29

           In rejecting the Pace I panel’s syllogism, the en banc court

in Pace II held that, in accordance with Pennhurst State School &

Hospital v. Halderman,30 “the only ‘knowledge’ that the Court is

concerned about is a state’s knowledge that a Spending Clause

condition requires waiver of immunity, not a state’s knowledge that

     27
          403 F.3d at 282–85.
     28
          ___ U.S. ___, 125 S. Ct. 1497 (2005).
     29
          325 F.3d at 617.
     30
          451 U.S. 1 (1981).

                                             13
it has immunity that it could assert.”31             We also stated in Pace II

that, “[a]t bottom...if Congress satisfies the clear statement

rule, the knowledge prong of the Spending Clause waiver analysis is

fulfilled.”32     Finding   that    §    504   and     §    2000d-7   clearly   and

unambiguously conditioned the receipt of § 504 funds on waiver of

a State’s Eleventh Amendment immunity from suits grounded in § 504,

we held that the State had “knowingly waived” immunity from suits

under § 504.33

       LADOE does not argue that § 504 and § 2000d-7 fail the “clear

statement rule” of Pace II; rather LADOE contends that in Jackson

(decided after Pace II), the Supreme Court repudiated this “clear

statement rule” and replaced it with a “notice” rule.                 In Jackson,

the male coach of a high school’s girls basketball team asserted a

retaliation claim against the local school board, grounding his

claim    in   Title   IX.   The    school      board       argued   that,   because

retaliation claims are not expressly authorized by the language of

Title IX, it was not put on notice of the potential for retaliation

claims under the statute.34

       The Supreme Court agreed that, because Title IX was passed

pursuant to the Spending Clause, “private damage actions are


  31
     403 F.3d at 279 (emphasis in original); see also Dole, 483 U.S. at
207 (quoting Pennhurst).
  32
       403 F.3d at 279.
  33
       Id. at 282–85.
  34
       125 S. Ct. at 1508–09.

                                        14
available only where recipients of federal funding had adequate

notice that they could be liable for the conduct at issue.”35

Consonant with its holding in Pennhurst, the Court reiterated its

position that a State must be aware of the conditions imposed on

receipt of federal funds for there to be “knowing acceptance” of

those conditions.36      Acknowledging that Title IX is silent on the

question of the fund recipient’s amenability to retaliation suits,

the Court looked to its prior decisions dealing with the scope of

remedies available under Title IX and concluded (in the absence of

a   “clear     statement”)   that   the    school   board   nevertheless   had

sufficient “notice” because:

         [T]he Board should have been put on notice by the fact
         that our cases since Cannon [v. University of Chicago,
         441 U.S. 677 (1979)], such as Gebser [v. Lago Vista
         Independent School Dist., 524 U.S. 274 (1998)] and Davis
         [v. Monroe County Bd. of Ed., 526 U.S. 629 (1999)], have
         consistently interpreted Title IX’s private cause of
         action broadly to encompass diverse forms of intentional
         sex discrimination.37

         LADOE would have us read Jackson as the Court’s abandoning of

College Savings Bank’s “clear statement rule” that we applied in

Pace II, and replacing it with a “notice” test of what the

recipients of the funds should have known at the time the funds

were accepted.       We cannot read such a sweeping change into the

court’s opinion in Jackson.          Title IX, the statute at issue in


    35
         Id. (internal citation omitted).
    36
         Id. at 1509 (quoting Pennhurst, 451 U.S. at 17).
    37
         Id.

                                      15
Jackson, is silent (or at least ambiguous) regarding retaliation;

in contrast, the Spending Clause statutes we addressed in Pace II

were clear and unambiguous regarding waiver:                    Section 2000d-7

expressly     and    unambiguously      states      that   parties    waive    their

Eleventh Amendment immunity to actions under § 504 by accepting

federal funds.       Moreover, there is no language in Jackson that can

be pointed to in support of a conclusion that the Court desired to

modify, much less repudiate, the well-established rule with such a

long and distinguished history laid out in Pennhurst, Dole, and

College     Savings    Bank    that    “if    Congress     intends    to    impose   a

condition     on    the   grant   of    federal       moneys,   it    must    do     so

unambiguously,”       and     “speak    with    a    clear   voice.”38        Stated

differently, nothing in Jackson undermines Pace II’s holding that

a clear statement like the one found in § 2000d-7 is sufficient to

satisfy the “knowing” requirement for a waiver to be valid.”                       Even

if Jackson can be interpreted as standing for the proposition that

a   clear   and     unambiguous   statement         from   Congress    is    not   the

exclusive road to a “knowing waiver,” it cannot be read to call

into question the holding in Pace II that the presence of a clear

statement is sufficient to satisfy the need for a waiver to be

“knowing.”     Accordingly, LADOE’s Jackson argument in this regard

fails.

                                III.    CONCLUSION


    38
     Pennhurst, 451 U.S. at 17 (citations omitted); see also Dole, 483
U.S. at 207.
                                         16
     We hold that LADOE, DSS, and TTUHSC are not entitled to

Eleventh Amendment immunity in these consolidated cases.                 We

therefore   affirm   the   district    courts’   denials   of   defendants’

motions to dismiss plaintiffs’ claims under § 504 on the basis of

such immunity, and we remand the cases to the district courts from

whence they came for further proceedings.

AFFIRMED AND REMANDED.




                                      17
EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH, GARZA,

DeMOSS   and    CLEMENT,   Circuit   Judges,   concurring   in   part   and

dissenting in part:



            The en banc decision in Pace v. Bogalusa City School

Board, 403 F.3d 272 (5th Cir. 2005), held that a state voluntarily

and knowingly waived its Eleventh Amendment immunity, as a matter

of federal law, from suits for damages in federal court by accept-

ing federal Rehabilitation Act funds made subject to 42 U.S.C.

§ 2000d-7.      We adhere to the arguments in the dissent from that

decision.      We concur, however, in the court’s disposition of the

states’ fallback arguments in these cases.39




  39
    Of course, the court’s conclusion here that state law properly
authorized the state officials to execute contracts in no way
undercuts the arguments in dissent from Pace that the federal law
during the relevant time period (1996 through 1998) did not
communicate to the states that they possessed Eleventh Amendment
sovereign immunity to waive. See Pace, 403 F.3d at 301 (Jones, J.,
dissenting).
                                18
