                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2345
                                  ___________

Charlotte Klingler; Charles Wehner;     *
Shelia Brashear,                        *
                                        *
             Appellees,                 *
                                        *
United States of America,               *
                                        *
             Intervenor on Appeal,      * On Motion for Reconsideration.
                                        *
       v.                               *
                                        *
Director, Department of Revenue,        *
State of Missouri,                      *
                                        *
             Appellant.                 *
                                   ___________

                                 Filed: July 7, 2006 (corrected 7/19/06)
                                  ___________

Before WOLLMAN, ARNOLD, and MELLOY, Circuit Judges.
                         ___________

ARNOLD, Circuit Judge.

       The disabled people who filed this lawsuit have moved for reconsideration of
part of our opinion in Klingler v. Director, Dep't of Revenue, 433 F.3d 1078 (2006)
(Klingler III). The plaintiffs contend that our decision that sovereign immunity
prohibits the recovery of monetary damages from Missouri must be revisited in light
of the Supreme Court's recent decision in United States v. Georgia, 126 S. Ct. 877
(2006). In this supplement to our opinion in Klingler III, we consider the plaintiffs'
argument but conclude that Georgia does not alter the outcome of this case.

                                          I.
       In Klingler III, we held that Missouri's practice of charging a $2 fee for
removable placards that permit users to park in spaces reserved for disabled people
violated the Americans with Disabilities Act (ADA) and its related regulation
prohibiting discriminatory surcharges, 28 C.F.R. § 35.130(f). We therefore affirmed
the injunctive and declaratory relief awarded by the district court1 against the State of
Missouri. Klingler III, 433 F.3d at 1082.

       In Klingler III, we also rejected for the second time the plaintiffs' argument that
they were entitled to monetary damages on their ADA claim. Id. We had reached the
same conclusion in an earlier appeal based on Alsbrook v. City of Maumelle, 184 F.3d
999 (8th Cir. 1999) (en banc), which held that Title II of the ADA did not validly
abrogate state sovereign immunity. See Klingler v. Director, Dep't of Revenue,
281 F.3d 776, 777 (8th Cir. 2002) (per curiam) (Klingler I). The plaintiffs urged us
to revisit the monetary-damages question in Klingler III, after the Supreme Court had
decided Tennessee v. Lane, 541 U.S. 509 (2004). In Lane, the Court held that Title II
of the ADA was a valid abrogation of sovereign immunity as applied to claims that
disabled people were being denied the fundamental right of access to court
proceedings. Id. at 531, 533-34. But we declined to revisit the sovereign immunity
question in Klingler III because another panel of this court had already determined
that Lane altered Alsbrook only in those cases implicating the fundamental right of
access to the courts. Klingler III, 433 F.3d at 1082 (citing Bill M. ex rel. William M.
v. Nebraska Dep't of Health & Human Servs., 408 F.3d 1096, 1100 (8th Cir. 2005),


      1
       The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri, sitting by consent of the parties. See 28 U.S.C. § 636(c);
see also Fed. R. Civ. P. 73.

                                           -2-
cert. granted, judgment vacated, and case remanded, sub nom., United States v.
Nebraska Dep't of Health & Human Servs., 126 S. Ct. 1826 (2006)).

       After this panel approved the Klingler III opinion, but before its official
publication, the Supreme Court issued its decision in Georgia. In that case, the Court
considered the claims of a disabled inmate who alleged that he was denied
accommodation during his imprisonment by the state. Georgia, 126 S. Ct. at 879.
The inmate claimed that the conditions of his incarceration violated not only the ADA,
but also his eighth amendment right to be free from cruel and unusual punishment (a
right made applicable to the states by the due process clause of the fourteenth
amendment). The Supreme Court said that there was no doubt that Congress can
abrogate sovereign immunity for conduct that actually violates the fourteenth
amendment. Georgia, 126 S. Ct. at 881-82. But since the inmate's claims still had to
be fleshed out in the district court, the Supreme Court remanded the case "to
determine ... on a claim-by-claim basis, (1) which aspects of the State's alleged
conduct violated Title II; (2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did
not violate the Fourteenth Amendment, whether Congress's purported abrogation of
sovereign immunity as to that class of conduct is nevertheless valid." Id. at 882
(emphasis added).

       The language in Georgia requiring a claim-by-claim determination of whether
Congress validly abrogated state sovereign immunity appears inconsistent with the
approach we took in Alsbrook, 184 F.3d at 1010, which declared that Title II as a
whole was not a valid abrogation of sovereign immunity. It also appears inconsistent
with Bill M., 408 F.3d at 1100, which read Lane to "modif[y]" Alsbrook's holding only
in cases involving access to the courts. We further note that the Supreme Court
recently vacated Bill M. and remanded the case with instructions that it be
reconsidered in light of Georgia. United States v. Nebraska Dep't of Health & Human
Servs. Finance & Support, 126 S. Ct. 1826 (2006). Because of these developments,

                                         -3-
we are no longer confident that Alsbrook or Bill M. can serve as reliable bases for
resolving the plaintiffs' claims for money damages.

       That said, we need not determine how the Court's decision in Georgia may
affect the holdings in Alsbrook or Bill M. in order to decide this case. Even though
Title II may validly abrogate the states' sovereign immunity in some cases, we do not
believe that the present case is one of them. Our reasons are set forth below.

                                           II.
                                           A.
       At the outset, we must determine whether it is appropriate for us to address the
eleventh amendment issue without the benefit of district court proceedings. In
Georgia, 126 S. Ct. at 879-80, the allegations of misconduct by the state had only
reached the pleadings stage. Recognizing that, the Supreme Court remanded the case
with the observation that "[o]nce [the] complaint is amended, the lower courts will be
best situated to determine, on a claim-by-claim basis," whether the ADA abrogated
state sovereign immunity. Id. at 881-82. In their submissions to this court, the
disabled plaintiffs and the United States, as intervenor, urge us to remand the case
back to the district court so that it can make this determination.

       We do not see the need for a remand in this case. In Georgia, the courts were
dealing with a pro se litigant who had filed a complaint alleging a wide variety of
misconduct, some of which the Supreme Court determined needed to be developed
further and some of which it described as frivolous. Because the Supreme Court was
unclear about the precise nature of the plaintiff's claims, and because the Eleventh
Circuit had already instructed the district court to allow the plaintiff to amend his
complaint, it made sense to remand the matter. Id. at 880-82.

       In this case, however, the record before us is more than sufficient to determine
the nature of the disabled plaintiffs' claims. We have the benefit of not only a proper

                                         -4-
complaint, but also an extensive record created for summary judgment. We see little
need for a remand when the issue before us is a purely legal one, namely, whether the
ADA validly abrogated state sovereign immunity with respect to the claims of the type
advanced by the plaintiffs.

                                           B.
       The eleventh amendment provides that "[t]he 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." Although, by its terms, the amendment
does not protect states from lawsuits by their own citizens, the Supreme Court has
long held that states enjoy immunity from such actions. See Hans v. Louisiana,
134 U.S. 1, 15 (1890). As broad as the immunity that the states have is, it is not
unlimited. The Court has recognized that § 5 of the fourteenth amendment allows
Congress to abrogate sovereign immunity to enforce that amendment's provisions.
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Florida Prepaid Postsecondary Educ.
Expense Bd. v. College Sav. Bank, 527 U.S. 627, 637 (1999). But the power to
enforce constitutional rights does not permit Congress to redefine the substantive
protections of the Constitution. City of Boerne v. Flores, 521 U.S. 507, 519 (1997).

       There is no question that, in enacting the ADA and authorizing its attendant
regulations, Congress intended to abrogate state sovereign immunity. See Board of
Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64 (2001); Alsbrook, 184 F.3d
at 1005-06. The relevant question here is whether that abrogation is consistent with
the scope of the § 5 power. The Supreme Court has come to different conclusions
about whether the ADA validly abrogates sovereign immunity. The Court held that
states enjoy sovereign immunity from lawsuits seeking money damages that are filed
pursuant to Title I of the ADA, which prohibits employment discrimination on the
basis of disability. Garrett, 531 U.S. at 360. In Lane, 541 U.S. at 531, 533-34, the
Supreme Court upheld ADA-based suits against states under Title II's requirement of

                                         -5-
access to government programs and services, at least to the extent that such suits
implicate the accessibility of judicial services. Most recently, in Georgia, 126 S. Ct.
at 881, the Supreme Court held that Title II also validly abrogates sovereign immunity
for conduct that is in itself unconstitutional.

       To comply with the method laid out in Georgia, we must begin our analysis by
identifying the precise nature of the claims before us. Id. at 882. This reflects the
Court's approach in Lane. "[N]othing in our case law requires us to consider Title II,
with its wide variety of applications, as an undifferentiated whole. Whatever might
be said about Title II's other applications, the question presented in this case is . . .
whether Congress has the power under § 5 to enforce the constitutional right of access
to the courts." Lane, 541 U.S. at 530-31 (footnote omitted).

       In their briefs before this court, the disabled plaintiffs suggest that their claims
implicate several fundamental rights. That is because the removable parking placards
at issue here can be used to gain parking access to governmental facilities such as
courthouses, polling places, and legislatures. Because these are all locations where
citizens may have the occasion to exercise fundamental rights, the plaintiffs urge us
to analyze the abrogation issue as one involving the same type of rights at issue in
Lane.

       We do not believe, however, that the claims before us seriously implicate these
rights, for several reasons. First, Missouri's de minimis charge of $2 per year for a
parking placard cannot be considered a significant impairment of the right to access
a courthouse or a voting booth. Second, we find it significant that Missouri's placards
provide not only access to park at governmental facilities, but also allow holders to
use reserved parking spaces at a wide variety of private locations. See Klingler III,
433 F.3d at 1081-82. This broad access further mitigates the effect of the fee on the
right of access to fundamental government services. Third, the placard fees are but
one method by which disabled people may obtain access to governmental facilities.

                                           -6-
Missouri offers, at no additional charge, special license tags that authorize vehicles to
use reserved spaces; the tags are provided for vehicles owned by physically disabled
persons, operated at least fifty percent of the time by a disabled person, or used
primarily to transport disabled members of the vehicle owner's household. See Mo.
Rev. Stat. § 301.142.7.

       For these reasons, we do not view Missouri's placard fee as an impairment on
the exercise of fundamental rights such as those at issue in Lane. If the fee in question
were charged for elevator rides to a courtroom, or for use of a wheelchair ramp at the
door of the voting booth, a different result might be required. But we believe that the
effect of Missouri's small annual surcharge for removable parking placards is simply
too trivial to amount to an impairment of any fundamental right.

       That is not to say that the fee has no constitutional implications. As we held in
Klingler III, the fee is discriminatory. Because non-disabled people are not required
to purchase a placard in order to park at public facilities, the fee discriminates against
some disabled people who require the use of accessible parking spaces. Unlike the
situation in Lane, however, this discrimination implicates only the fourteenth
amendment's guarantee of equal protection. Disparate treatment based on disability
is subject to rational basis review. See City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 446 (1985). Under this deferential standard, the state's placard program
is constitutional so long as it is "rationally related to a legitimate governmental
purpose." Id. Although we have already determined that charging disabled people a
small fee in exchange for the parking placards violates § 35.130(f), see Klingler III,
433 F.3d at 1082, we conclude that it does not violate the Constitution. The state can
reasonably collect the fee to pay for the cost of the program, to discourage frivolous
applications, and to control against the fraudulent use of disabled parking spaces.

       Because the conduct that the plaintiffs allege does not, in itself, violate the
constitution, under Georgia, 126 S. Ct. at 878, we must determine "whether

                                           -7-
Congress's purported abrogation of sovereign immunity as to that class of conduct is
nevertheless valid." We are addressing Congress's ability to enact "prophylactic"
legislation designed to deter unconstitutional conduct, and thus there must be
“congruence and proportionality between the injury to be prevented or remedied and
the means adopted to that end.” Boerne, 521 U.S. at 520. Courts conduct a three-part
inquiry to determine whether Congress met the Boerne requirement: They identify
"the constitutional right or rights that Congress sought to enforce" when it enacted the
law being reviewed, Lane, 541 U.S. at 522, decide whether Congress "identified a
history and pattern" unconstitutional conduct by the states, see Garrett, 531 U.S. at
368, and, if so, determine whether the abrogation constitutes a proportionate response
to the constitutional violation, see College Sav. Bank, 527 U.S. at 646.

                                           C.
                                           1.
       Our inquiry here is made somewhat more complicated by the fact that we are
not just considering Title II's requirement of reasonable accommodation, but also the
regulatory prohibition on surcharges. In applying Boerne, should we consider Title II
as a whole, or just § 35.130(f)? Four Circuits have applied Boerne to this particular
regulation, and they have taken different approaches. The Fourth Circuit elected to
"examine the legality of the specific statute and regulation" at issue, rather than all
of Title II. Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 705 (4th
Cir. 1999). That court identified three reasons for its narrow approach: the canon of
constitutional avoidance, administrability, and the federalism concerns that a finding
of abrogation would raise. The Fourth Circuit worried about "sweeping validations
of abrogation" that could occur if the court looked broadly at an entire title, especially
because it is possible that the constitutionality of individual provisions may differ.
The court concluded that its concerns "dictate[d] a searching review of the legal basis
for suit." Id. at 703-05.




                                           -8-
      The Fifth Circuit adopted a somewhat similar approach in Neinast v. Texas, 217
F.3d 275, 280-82 (5th Cir. 2000), cert. denied., 531 U.S. 1190 (2001). In that case,
noting that Congress would not have made findings regarding every topic addressed
by regulations, the court began by determining whether a statutory provision that
authorized the regulations satisfied Boerne. Neinast, 217 F.3d at 281. The court
concluded that if the authorizing statute met the initial inquiry, it should then examine
the particular regulation to determine whether it "operates within the remedial
compass defined by Congress through valid use of § 5 powers." Id.

       The Ninth Circuit, however, rejected the focused inquiry favored in Brown as
insufficiently deferential to Congress's powers to enforce the fourteenth amendment.
"In our view," that court said, "a piecemeal analysis of the regulations would unduly
constrain Congress's power to construct a statutory scheme addressing discrimination;
the federal courts, in effect, would have a line-item veto over legislation directed at
intentional or arbitrary discrimination by the states." Dare v. California, 191 F.3d
1167, 1176 n.7 (9th Cir. 1999), cert. denied, 531 U.S. 1190 (2001). The Tenth Circuit
agreed with the broader approach of Dare in Thompson v. Colorado, 278 F.3d 1020,
1027 n.4 (10th Cir. 2001), cert. denied, 535 U.S. 1077 (2002). (We note that the
Tenth Circuit recently held that Thompson's conclusion that Title II did not abrogate
sovereign immunity "under any context" was no longer good law after the Supreme
Court's decisions in Lane and Georgia. Guttman v. Khalsa, 446 F.3d 1027, 1034
(10th Cir. 2006)).

       The Supreme Court has not yet had occasion to determine the proper scope of
the Boerne inquiry when the action challenged by the states is based upon a regulation
rather than a statute. Lane and Garrett suggest, however, that the court is willing to
consider more than just a specific statutory provision. For example, in Lane, 541 U.S.
at 529-33, the court referred to multiple sections of Title II and its regulations in
support of its determination that Title II as it applies to cases implicating the right of
access to the courts was congruent and proportional, and therefore a valid abrogation

                                           -9-
of sovereign immunity. In Garrett, 531 U.S. at 372-73, the Court surveyed more than
one statutory section of Title I. The Supreme Court specifically limited its analysis
in these two cases to the individual Title of the ADA at issue, but the opinions in Lane
and Garrett went beyond the specific statutory sections at issue when applying the
Boerne principles. Although we find the Fourth Circuit's concerns in Brown to be
well-founded, the more recent decisions in Garrett and Lane lead us to believe that
the Supreme Court is painting with a broader brush. We therefore conclude that in
deciding whether Congress validly abrogated Missouri's sovereign immunity with
respect to the claims presented here, we must consider Title II as a whole and not limit
our review to § 35.130(f).

                                            2.
       The first step in assessing the validity of Congress's purported abrogation of
sovereign immunity is "to identify the rights Congress sought to enforce when it
enacted Title II." Lane, 541 U.S. at 522. The Supreme Court has held that Title II
sought to enforce a variety of basic constitutional guarantees, including the fourteenth
amendment's prohibition on irrational disability discrimination and some of the rights
protected by the due process clause. Id. at 522-23; see also id. at 540-41 (Rehnquist,
C.J., dissenting). Because we have already determined that this case implicates only
the equal protection guarantee against irrational discrimination, we need not determine
whether Title II sought to enforce rights beyond those described in Lane.

       Next, we consider whether Congress, when passing Title II of the ADA,
"identified a history and pattern" of unconstitutional conduct. Garrett, 531 U.S. at
368. Again, Lane answered this question by determining that Congress targeted
"pervasive unequal treatment in the administration of state services and programs,
including systemic deprivations of fundamental rights." Lane, 541 U.S. at 524. The
court's decision in Lane that Title II targeted a pattern of unconstitutional conduct
forecloses the need for further inquiry. See Association for Disabled Ams., Inc. v.
Florida Int'l Univ., 405 F.3d 954, 958 (11th Cir. 2005).

                                         -10-
       We ask finally whether the provisions of Title II are "congruent and
proportional" to the rights that it seeks to enforce. As we have said, the Supreme
Court specified in Lane, 541 U.S. at 530-31, that this question should be answered in
light of the specific rights implicated by the case before it. We have already
determined that the challenge to Missouri's parking placard fee, unlike Lane, does not
impose any real limitation on due process rights. Our focus is whether Title II is
appropriate legislation to enforce the equal protection clause's prohibition on irrational
discrimination.

        We do not think that the rights and remedies that Title II creates are an
appropriate means of enforcement of the equal protection rights of disabled people.
Title II requires states to take affirmative steps to ensure that "no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Although the
provisions of Title II permit some flexibility by requiring only reasonable efforts at
accommodation, see id.; 42 U.S.C. § 12131(2), we think that this case provides a good
illustration of the true breadth of the ADA's sweep. In exchange for a removable
placard that allows disabled people access to reserved parking spaces at numerous
government and private businesses, Missouri is prohibited from imposing a reasonable
surcharge to cover the costs of its program benefitting the disabled. The small fee that
Missouri imposed to help support its effort to provide disabled parking is certainly not
unconstitutional. The fact that the ADA's scheme forbids it convinces us that, rather
than seeking to enforce the constitution's guarantee against irrational discrimination
based on disability, Congress was seeking to redefine the scope of protection offered
by the Constitution. Accord, Neinast, 217 F.3d at 282; Brown, 166 F.3d at 707-08.
Because "Congress does not enforce a constitutional right by changing what the right
is," Boerne, 521 U.S. at 519, we hold that Title II did not validly abrogate Missouri's
sovereign immunity in the context of these challenges to its surcharge on parking



                                          -11-
placards. Cf. Keef v. State of Nebraska, No. S-03-1306, 2006 WL 1651042 (Neb. June
16, 2006).

       We have already determined that Missouri's assessment of an annual $2 fee for
the use of a removable parking placard violates the ADA and its related regulations.
We have granted the plaintiffs' request for declaratory and injunctive relief. Our
holding today only prevents the plaintiffs from recovering the $2.00 annual fee they
paid since 1990, because as to the category of claims involving rational discrimination
based on disability, Title II of the ADA is not an appropriate exercise of Congress's
power under § 5 of the fourteenth amendment.

                                           III.
       In this supplement to our opinion in Klingler III, we conclude again that the
eleventh amendment prevents the plaintiffs from obtaining monetary relief against the
State of Missouri. Restating our conclusion in Klingler III, 433 F.3d at 1082-83, "we
affirm the district court's grant of the plaintiffs' summary judgment motion and its
award of declaratory and injunctive relief, and we remand the case to the district court
for entry of a judgment consistent" with Klingler III, as supplemented here.
                        ______________________________




                                         -12-
