                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 24 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHIRLEY A. RANDALL,

                Plaintiff-Appellee,

    v.                                                    No. 00-5209
                                                    (D.C. No. 99-CV-886-H)
    STATE OF OKLAHOMA ex rel.                             (N.D. Okla.)
    OKLAHOMA DEPARTMENT OF
    CORRECTIONS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO, and KELLY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant appeals the district court’s denial of its motion for summary

judgment based on Eleventh Amendment immunity in this action brought by

plaintiff under Title I of the Americans With Disabilities Act, 42 U.S.C.

§§ 12111-12117 (“ADA”). We have jurisdiction to hear this interlocutory appeal

pursuant to 28 U.S.C. § 1291 and the collateral order doctrine.      See P.R. Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc.      , 506 U.S. 139, 147 (1993) (applying     Cohen

v. Beneficial Indus. Loan Corp.    , 337 U.S. 541 (1949)).

       At the time the district court denied defendant’s motion, controlling Tenth

Circuit precedent provided that Congress validly abrogated the States’ Eleventh

Amendment immunity in enacting Title I of the ADA.           Cisneros v. Wilson ,

226 F.3d 1113, 1128 (10th Cir. 2000). Between the time defendant filed its

opening brief on appeal and plaintiff filed her response brief, however, the

Supreme Court ruled that Congress did not validly abrogate the States’ Eleventh

Amendment immunity in Title I of the ADA, effectively overruling          Cisneros .

Board of Trustees v. Garrett , 531 U.S. 356, ___, 121 S. Ct. 955, 964-68 (2001).

Plaintiff concedes in her appellate brief that     Garrett controls here. Appellee’s Br.

at 1, 5.

       Plaintiff argues, however, that she should be awarded her fees and costs on

appeal because at the time defendant took this appeal, it was legally frivolous in

light of our holding in   Cisneros . Plaintiff complains of defendant’s failure to


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recognize Cisneros as controlling authority in its opening brief to this court or in

proceedings before the district court. Further, she maintains that this appeal was

unnecessary because defendant could have simply awaited the Supreme Court’s

decision in Garrett and, if favorable, defendant could have moved again to have

the district court dismiss the case.

       We deny plaintiff’s request for appellate fees and costs. We cannot say that

defendant’s appeal was frivolous in light of the pendency of    Garrett and of its

ultimate resolution. Nor can we say that defendant acted improperly in pursuing

an appeal rather than sitting on its appellate rights and awaiting the outcome of

the proceedings in Garrett . We do, however, strongly admonish defendant for

failing to cite Cisneros in its opening brief. The proper course would have been

for defendant to recognize the controlling nature of    Cisneros and argue for its

overruling. By failing to do so, defendant eschewed its obligation of fairness and

candor to this court.

       The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED and the action is REMANDED to the district court

with directions to dismiss the case as barred under the Eleventh Amendment.

Plaintiff’s motion to file a supplemental answer brief is DENIED.


                                                       Entered for the Court



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      David M. Ebel
      Circuit Judge




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