                                 United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 97-2855.

                    Charles SEABORN, Robert Harris, Plaintiffs-Appellants,

                                                v.

     STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, Defendants-Appellees.

                                          June 16, 1998.

Appeal from the United States District Court for the Northern District of Florida. (No. 4:96cv168-
MMP), Maurice M. Paul, Judge.

Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

       BLACK, Circuit Judge:

       Appellants Charles Seaborn and Robert Harris brought this action against the State of

Florida, Department of Corrections (Florida), alleging they were discriminated against in violation

of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213(ADA). The district court

granted Florida's motion for summary judgment and Appellants filed this appeal. Florida now

asserts for the first time that it is entitled to Eleventh Amendment sovereign immunity from

Appellants' ADA claims.

                                       I. BACKGROUND

       Appellants are African-American males who worked for Florida at the Tallahassee

Community Correctional Center (TCCC).            Appellants have a skin condition known as

pseudofolliculitis barbae (PFB), which causes lesions to form on the surface of their skin after

shaving. Appellants allege that the appropriate treatment for PFB is simply to refrain from shaving

and, therefore, that they must wear beards as a matter of medical necessity.
       TCCC has a "No Beard Policy" requiring male employees to be clean-shaven. This policy

includes medical exceptions under which TCCC permitted Appellants to wear beards. Appellants

allege they nevertheless were subjected to de facto workplace discrimination and were denied

promotions because they wore beards. Appellants brought claims against Florida pursuant to the

ADA, asserting that PFB is a disability. The district court granted Florida's motion for summary

judgment, concluding that Appellants do not have a disability within the meaning of the ADA

because PFB does not substantially limit Appellants' ability to work.1 This appeal followed.

                                         II. DISCUSSION

        Florida asserts for the first time on appeal that it is entitled to Eleventh Amendment

immunity from Appellants' ADA claims.           An assertion of Eleventh Amendment immunity

essentially challenges a court's subject matter jurisdiction: "The Eleventh Amendment restricts the

judicial power under Article III, and Article I cannot be used to circumvent the constitutional

limitations placed on federal jurisdiction." Seminole Tribe v. Florida, 517 U.S. 44, 72-73, 116 S.Ct.

1114, 1131-32, 134 L.Ed.2d 252 (1996). Eleventh Amendment immunity therefore may be asserted

for the first time on appeal. Smith v. Avino, 91 F.3d 105, 107 (11th Cir.1996) (citations omitted),

abrogated on other grounds by Steel Co. v. Citizens for a Better Env't, --- U.S. ----, 118 S.Ct. 1003,

140 L.Ed.2d 210 (1998). Furthermore, an assertion of Eleventh Amendment immunity must be


   1
    Appellants also brought claims alleging they were discriminated against on the basis of race
in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17. Florida filed a motion for summary
judgment on all claims. In its order dismissing the ADA claims, the district court reserved
judgment on the Title VII claims and instructed Appellants' counsel to clarify the theory of Title
VII liability and to specify the record evidence demonstrating a genuine issue of material fact.
After further briefing, the district court dismissed the Title VII claims, ruling that Appellants had
not stated a prima facie case of discrimination under any theory of Title VII liability. Appellants
appeal the district court's order dismissing the Title VII claims. We affirm the dismissal of the
Title VII claims on the basis of the well-reasoned district court opinion.

                                                  2
resolved before a court may address the merits of the underlying claim(s). See Steel, --- U.S. at ----,

118 S.Ct. at 1012-16.2

        Florida is entitled to Eleventh Amendment immunity unless Congress has abrogated that

immunity. "In order to determine whether Congress has abrogated the States' sovereign immunity,

we ask two questions: first, whether Congress has unequivocally expressed its intent to abrogate

the immunity; and second, whether Congress has acted pursuant to a valid exercise of power."

Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123. Congress has unequivocally expressed its intent

for the ADA to abrogate sovereign immunity. 42 U.S.C. § 12202. Therefore, our analysis will focus

on the second question set forth in Seminole Tribe.

       In Kimel v. State Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir.1998), a panel of this Court

held that the ADA is a valid exercise of the Enforcement Clause of the Fourteenth Amendment and

concluded that the States do not have Eleventh Amendment immunity from claims brought under

the ADA. Id. We are bound by the decision of the Kimel panel unless that decision is overruled by



   2
    Despite the jurisdictional nature of the Eleventh Amendment, prior to Steel this Court held
that an assertion of sovereign immunity could be ignored where the resolution of the merits of a
claim would favor the party asserting sovereign immunity:

               Though it is the usual practice to resolve subject matter jurisdiction issues before
               reaching the merits, it is permissible for the Court to bypass jurisdictional
               questions and decide the case on the merits when the jurisdictional issue is
               difficult, the law is not well-established, and a decision on the merits favors the
               party who has raised the jurisdictional bar.

       Smith, 91 F.3d at 108. This practice was referred to as "hypothetical jurisdiction,"
       whereby the court hypothetically assumed jurisdiction over a case and then dismissed the
       case on the merits. The Supreme Court squarely rejected the doctrine of hypothetical
       jurisdiction in Steel and instructed that a challenge to Article III subject matter
       jurisdiction must be resolved before a court may address the merits of the underlying
       claim in any manner. Steel, --- U.S. at ---- - ----, 118 S.Ct. at 1012-16.

                                                  3
the Supreme Court or by this Court sitting en banc. United States v. Woodard, 938 F.2d 1255, 1258

(11th Cir.1991).

       Having resolved the Eleventh Amendment issue against Florida, we may now address the

merits of Appellants' ADA claims. We affirm the dismissal of Appellants' ADA claims on the basis

of the well-reasoned district court opinion.

       AFFIRMED.




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