     Case: 14-60777      Document: 00513179620         Page: 1    Date Filed: 09/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                     FILED
                                                                                September 2, 2015
                                      No. 14-60777
                                                                                  Lyle W. Cayce
                                                                                       Clerk
VANDA GRACE CROWE, Administratrix of the Estate of Michael Grace,
Deceased,

              Plaintiff - Appellee

v.

MISSISSIPPI DIVISION OF MEDICAID; MISSISSIPPI DEPARTMENT OF
REHABILITATION SERVICES,

              Defendants - Appellants




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-366


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The State of Mississippi appeals the denial of its motion for summary
judgment based on sovereign immunity.                  Crowe asserts that we lack
jurisdiction because the State did not appeal the denial of its motion to dismiss
based on sovereign immunity. But a party is generally not required to exhaust
previously available interlocutory appeals to pursue an interlocutory appeal.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 14-60777       Document: 00513179620          Page: 2     Date Filed: 09/02/2015



                                       No. 14-60777
In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 235–36 (5th Cir. Unit
B 1982). We conclude that we have jurisdiction.
       The district court failed to explain why it denied the State’s motion for
summary judgment based on sovereign immunity as to Crowe’s claim under
the Americans with Disabilities Act (ADA). Instead, in its September 30, 2014
order denying the motion, the district court stated that “[a] memorandum
opinion is forthcoming.” But the district court never issued that memorandum
opinion. “[W]e have not hesitated to remand a case to the district court for an
explanation of its decision when no explanation was originally given.” Gates
v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 418 (5th Cir.
2008). We therefore VACATE the district court’s denial of summary judgment
as to the ADA claim and REMAND the case for the district court to perform
the three-step inquiry laid out in United States v. Georgia, 546 U.S. 151, 159
(2006), to determine in the first instance whether the ADA abrogates the
State’s sovereign immunity as to Crowe’s ADA claim. 1




       1We note that, when denying the State’s motion to dismiss, the district court relied
upon Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 454–55 (5th Cir. 2005), for
the proposition that a court does not need to determine whether the ADA abrogates a state’s
sovereign immunity if the state has waived its sovereign immunity under the Rehabilitation
Act. But in Bennett-Nelson, the plaintiff’s Rehabilitation Act and ADA claims were identical
because causation was not at issue. See id. In contrast, here, the two claims are not identical
because causation will likely be contested at trial. The district court therefore must
determine whether the ADA itself abrogates the State’s sovereign immunity.
                                              2
