                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2002

Koslow v. Comm of PA
Precedential or Non-Precedential: Precedential

Docket No. 01-2782




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PRECEDENTIAL

       Filed August 21, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2782

GEORGE KOSLOW,
       Appellant

v.

COMMONWEALTH OF PENNSYLVANIA
d/b/a DEPARTMENT OF CORRECTIONS;
DONALD T. VAUGHN;
PHICO SERVICES COMPANY;
COMPSERVICES, INC.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 97-cv-05951
(Honorable John P. Fullam)

Argued March 5, 2002

Before: SCIRICA and ROSENN, Circuit Judges,
and WARD, District Judge*

(Filed: August 21, 2002)
_________________________________________________________________

* The Honorable Robert J. Ward, United States District Judge for the
Southern District of New York, sitting by designation.


       JEFFREY CAMPOLONGO, ESQUIRE
        (ARGUED)
       THOMAS M. HOLLAND, ESQUIRE
       Grace Hall
       1522 Locust Street
       Philadelphia, Pennsylvania 19102

        Attorneys for Appellant

       SETH M. GALANTER, ESQUIRE
        (ARGUED)
       SARAH E. HARRINGTON, ESQUIRE
       United States Department of Justice
       Appellate Section
       950 Pennsylvania Avenue, N.W.
       Washington, D.C. 20530

        Attorneys for Intervenor-Appellant,
       United States of America

       JOHN G. KNORR, III, ESQUIRE
        (ARGUED)
       Office of Attorney General
        of Pennsylvania
       Department of Justice
       Strawberry Square, 15th Floor
       Harrisburg, Pennsylvania 17120

        Attorney for Appellees,
       Commonwealth of Pennsylvania
       d/b/a Department of Corrections;
       Donald T. Vaughn

       ELIZABETH A. MALLOY, ESQUIRE
        (ARGUED)
       Klett, Rooney, Lieber & Schorling
       Two Logan Square, 12th Floor
       18th and Arch Streets
       Philadelphia, Pennsylvania 19103

        Attorney for Appellee,
       PHICO Services Company

                                 2


       HOWARD R. FLAXMAN, ESQUIRE
        (ARGUED)
       Fox, Rothschild, O’Brien & Frankel
       2000 Market Street, 10th Floor
       Philadelphia, Pennsylvania 19103

        Attorney for Appellee,
       CompServices, Inc.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this disability discrimination case under the
Rehabilitation Act, the principal issue on appeal is whether
the Commonwealth of Pennsylvania waived its sovereign
immunity by accepting certain federal funds for the
Department of Corrections. We will reverse in part and
affirm in part.

I.

In October 1988, George Koslow was hired by the
Pennsylvania Department of Corrections as a water
treatment plant supervisor for the State Correctional
Institute in Graterford, Pennsylvania ("SCI-Graterford"), a
state prison receiving federal funds under the State
Criminal Alien Assistance Program (SCAAP). On June 6,
1995, Koslow injured his lower back loading eighty-pound
salt bags into SCI-Graterford’s industrial water softener,
then reinjured his back performing the same task in
September 1995 and November 1996. On each occasion
Koslow notified SCI-Graterford’s Human Resources
Department of his condition, requesting relief from lifting
the salt bags and walking stairs. On June 10, 1997, after
an investigation, SCI-Graterford officials informed Koslow
he either had to return to work at full duty or be placed on
workers’ compensation leave. Koslow chose the former,
remaining in a position at work that required stair
climbing. On February 29, 2000, he was dismissed for
being unable to perform "essential functions" of his job.1
_________________________________________________________________

1. Because of the procedural posture of the case, the record is unclear
regarding what "essential functions" Koslow was unable to perform.

                                3


Koslow alleged the Commonwealth of Pennsylvania and
SCI-Graterford Superintendent Donald Vaughn (collectively,
the "Commonwealth defendants") refused to accommodate
his disability, violating the Americans With Disabilities Act
(ADA), 42 U.S.C. S 12101 et seq., the Rehabilitation Act, 29
U.S.C. S 701 et seq., and the Pennsylvania Human
Relations Act (PHRA), 42 Pa. Cons. Stat. Ann. S 951 et seq.
Koslow also alleged PHICO Services Co. and CompServices,
Inc., his past and present worker’s compensation
administrators, had wrongfully processed his compensation
claims.2 He sought reinstatement and damages.

The District Court granted summary judgment to PHICO
and CompServices on Koslow’s PHRA and ADA claims,
finding that as "agents" of Koslow’s "employers," they
played no decisionmaking role regarding Koslow’s
employment. The District Court stayed the remainder of
Koslow’s action pending resolution of Board of Trustees of
the University of Alabama v. Garrett, 531 U.S. 356, 121 S.
Ct. 955 (2001), then before the United States Supreme
Court, which held Congress’s abrogation of states’ Eleventh
Amendment immunity under Title I of the ADA was invalid.
Id. at 965-68.

With the benefit of Garrett and after further briefing, the
District Court granted the Commonwealth defendants’
motions for summary judgment on Koslow’s ADA claims.
The District Court found neither the ADA nor the
Rehabilitation Act abrogated the Commonwealth’s sovereign
immunity. It also held the Commonwealth defendants had
not waived sovereign immunity on the Rehabilitation Act
claims. Therefore, Koslow could not state valid Title I claims
against the Department of Corrections under either statute.
Nor, the District Court found, could Koslow pursue
injunctive relief against SCI-Graterford Superintendent
Vaughn under Title I of the ADA. After disposing of Koslow’s
Title I claims, the District Court also dismissed Koslow’s
claim under Title II of the ADA. The latter claim is not
pursued on appeal.3 As noted, the District Court had
_________________________________________________________________

2. From 1995 through 1997, PHICO acted as SCI-Graterford’s agent in
administering its workers’ compensation scheme. In December 1997,
CompServices replaced PHICO.
3. Title I of the ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disability

                                4
already dismissed Koslow’s PHRA claims against PHICO
and CompServices, holding they had played no
"decisionmaking" role. This appeal focuses solely on
Koslow’s Rehabilitation Act claims against the
Commonwealth defendants, his Title I claim for injunctive
relief under the ADA against SCI-Graterford Superintendent
Vaughn, and his PHRA claims against PHICO and
CompServices.

II.

The District Court had jurisdiction over Koslow’s federal
claims under 28 U.S.C. SS 1331 and 1343 and
_________________________________________________________________

of such individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment." 42
U.S.C. S 12112(a). Koslow asserted ADA claims under Title I
(employment) and Title II-A (public services). As noted, in Garrett, the
Supreme Court held Congress’s abrogation of states’ Eleventh
Amendment immunity under Title I of the ADA was invalid. 121 S. Ct.
at 965-68. But the Supreme Court held that state officials could be
subjected to federal court actions for injunctive relief in violation of Title
I. Id. at 968 n.9 ("Those standards can be enforced by the United States
in actions for money damages as well as by private individuals in actions
for injunctive relief under Ex parte Young, 209 U.S. 123 (1908)).

As to ADA claims under Title II, the District Court offered two
justifications for its dismissal. First, the Court held Title I of the ADA is
the "sole avenue for pursuing employment discrimination claims based
on disability. Title I expressly deals with employment discrimination,
while Title II deals with ‘services, programs, or activities of a public
entity’ . . ." Op. at 2 (suggesting this Court "avoided" deciding whether
Title II of the ADA allows for an employment discrimination claim based
on disability in Lavia v. Pennsylvania, 224 F.3d 190, 194 n.2 (3d Cir.
2000)) (citations omitted). Given Koslow’s failure to appeal this issue, we
reserve consideration of this point. The District Court also found that in
enacting Title II of the ADA, Congress had not validly abrogated states’
immunity. Id. at 2-3. We need not reach this issue. Koslow does contest
the dismissal of his injunctive relief claims brought against SCI-
Graterford Superintendent Vaughn under Title I.

Section 504 of the Rehabilitation Act and Title II of the ADA offer
similar protections for persons with disabilities. Although Title II applies
to all state and municipal governments, S 504 applies only to those
agencies or departments receiving federal funds, andS 504 applies only
during the periods during which the funds are accepted.

                                5


supplemental jurisdiction on his state law claims under 28
U.S.C. S 1367. We have jurisdiction under 28 U.S.C.
S 1291.

III.
Certain background information on the federal fiscal
connection to the Pennsylvania Department of Corrections,
Koslow’s employer, is essential here. The Commonwealth of
Pennsylvania receives federal funds for various designated
purposes. From November 1996 through February 2000, at
least forty-two federal grants were provided to the
Pennsylvania Department of Corrections.4 The
Commonwealth identifies twenty-five of those federal grants
as "programs with multiple years of funding." One such
"multiple year" program is the State Criminal Alien
Assistance Program, originally established to alleviate costs
states incur when illegal aliens commit state crimes and are
imprisoned in state correctional facilities. Despite its stated
purpose, funds received under SCAAP are not necessarily
directed by the Department of Corrections toward costs for
imprisoned illegal aliens. Nor need the Department of
Corrections track these funds or report to the federal
government where the funds are allocated. 62 Fed. Reg.
35,232 (June 30, 1997).

The record demonstrates the Commonwealth of
Pennsylvania accepted federal funds under SCAAP in 1996,
1997, 1998, and 1999, the relevant dates of this litigation.
The parties stipulated the Commonwealth disbursed all of
those funds to the Department of Corrections.5 Despite the
stipulation, the exact amount of the federal contribution
_________________________________________________________________

4. On February 26, 2002, during a Pennsylvania Senate Appropriations
Committee Hearing, one senator testified 38,425 prisoners were then
incarcerated in Commonwealth prisons, at an approximate aggregate
annual cost to the Commonwealth of $1,075,900,000 (estimating
$28,000 per prisoner). For fiscal year 2002-03, the proposed budget for
the Pennsylvania Department of Corrections is $1,295,214,000.

5. The Department of Corrections also receives federal grant funds from
the United States Department of Education, but those funds are
managed and administered by a separate Department of Corrections
office.

                                6


under SCAAP to the Department of Corrections or to SCI-
Graterford is not part of the record.

IV.

The most difficult issue in this appeal is whether the
Commonwealth defendants waived their sovereign
immunity to suit on Koslow’s federal Rehabilitation Act
claims. There are three related, yet separate and
independent, issues -- whether the Commonwealth’s
acceptance of SCAAP funds means it waived its Eleventh
Amendment immunity for Rehabilitation Act suits against a
department receiving those funds; whether the
Rehabilitation Act, especially 42 U.S.C. S 2000d-7, imposes
an "unconstitutional condition" on the Commonwealth’s
receipt of federal funds; and whether the Rehabilitation Act
is valid legislation under the Spending Clause. We exercise
plenary review over these questions of law, Blanciak v.
Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996),
and, more generally, over the grant of summary judgment.
Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir. 2001).

A.

The Eleventh Amendment to the United States
Constitution provides:

       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.

U.S. CONST. amend. XI. The Eleventh Amendment does not
explicitly apply to cases that do not involve "Citizens of
another State" or "Citizens or Subjects of any Foreign
State." See Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
54 (1996) ("the text of the Amendment would appear to
restrict only the Article III diversity jurisdiction of the
federal courts"). But as the Supreme Court has held for
over a century, see Hans v. Louisiana, 134 U.S. 1, 13
(1890), the Eleventh Amendment confirms a broader
"background principle of state sovereign immunity."
Seminole Tribe, 517 U.S. at 72.

                                7


As developed, the Eleventh Amendment provides states
with immunity not only from suits brought by citizens of
other states, but also from suits brought by their own
citizens. Hans, 134 U.S. at 13-14. Recent cases have
emphasized the Eleventh Amendment’s embodiment of this
common law doctrine. E.g., Alden v. Maine, 527 U.S. 706,
713 (1999); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 145-46 (1993) (declaring the Eleventh
Amendment a "fundamental constitutional protection . . .
rooted in a recognition that the States, although a union,
maintain certain attributes of sovereignty, including
sovereign immunity . . . [and] respect owed them as
members of the federation").

But a state’s Eleventh Amendment protection from
federal suits -- whether brought by citizens of their state or
another -- is not absolute. Two established exceptions to
the Eleventh Amendment’s bar permit individuals to sue
states. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999). First, Congress
may authorize such a suit under its power "to enforce the
Fourteenth Amendment -- an Amendment enacted after the
Eleventh Amendment and specifically designed to alter the
federal-state balance." Id. (citing Fitzpatrick v. Bitzer, 427
U.S. 445 (1976)). Under this exception, Congress abrogates
a state’s sovereign immunity "when it both unequivocally
intends to do so and ‘act[s] pursuant to a valid grant of
constitutional authority.’ " Garrett, 531 U.S. at 363 (quoting
Kimel v. Bd. of Regents, 528 U.S. 62, 73 (2000)). Second, a
state may waive its sovereign immunity by consenting to
suit. Coll. Sav. Bank, 527 U.S. at 670 (citing Clark v.
Barnard, 108 U.S. 436 (1883)); Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 238 (1985). Of course, in addition,
a person seeking purely prospective relief against state
officials for ongoing violations of federal law may sue under
the "legal fiction" of Ex parte Young, 209 U.S. 123, 159-60
(1908), despite the text of the Eleventh Amendment. See
Alden, 527 U.S. at 757.

At issue here is whether plaintiffs’ Rehabilitation Act
claims fall within one of these exceptions. Section 504 of
the Rehabilitation Act prohibits discrimination on the basis
of disability in federally funded programs or activities: "No

                                8


otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . ." 29
U.S.C. S 794(a). In its definitional section, the statute
provides:

       For the purposes of this section, the term "program or
       activity" means all the operations of --

       (1)(A) a department, agency, special purpose district,
       or other instrumentality of a State or local
       government; or

       (B) the entity of such State or local government that
       distributes such assistance and each such
       department or agency (and each other State or local
       government agency) to which the assistance is
       extended, in the case of assistance to a State or local
       government;

       . . . any part of which is extended Federal financial
       assistance.

29 U.S.C. S 794(b).

There have been many suits under the Rehabilitation Act
against sovereign states. Indeed, "[t]he Rehabilitation Act
has a long history of scrutiny under the Eleventh
Amendment." Nihiser v. Ohio EPA, 269 F.3d 626, 628 (6th
Cir. 2001). In Atascadero State Hospital, the Supreme
Court held that despite the language of S 504, it was not
sufficiently clear that Congress intended states’ receipt of
federal funds under the statute to constitute a waiver of
Eleventh Amendment immunity. 473 U.S. at 247 (finding
the Act fell "far short of manifesting a clear intent to
condition participation in the programs funded under the
Act on a State’s consent to waive its constitutional
immunity"). The next year, Congress amended S 504 to
provide specifically that: "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 . . . ." 42
U.S.C. S 2000d-7(a)(1).

                                9


In its sovereign immunity analysis, the District Court
rejected the possibility that Congress had validly abrogated
the Commonwealth’s immunity under the Fourteenth
Amendment. The District Court held the 1986 amendment
to the Rehabilitation Act represented an "unequivocal[ ]
express[ion]" of Congress’s desire to abrogate states’
immunity. Op. at 4. But this factor alone, the court held,
was insufficient to abrogate the Department of Corrections’s
immunity under the Eleventh Amendment:

       The second part of the test [for abrogation], however, is
       "congruence and proportionality" -- that is, whether
       Congress has identified a "pattern of discrimination by
       the States which violates the Fourteenth Amendment,
       and [whether] the remedy imposed by Congress .. . is
       congruent and proportional to the targeted violation."
       Garrett, 121 S. Ct. at 967-68. No specific
       unconstitutional conduct by the states was identified
       by Congress, and therefore S 504 must fall victim to the
       same fate that has lately befallen other
       antidiscrimination statutes insofar as they are applied
       to the states.

Op. at 4.6

The District Court then considered whether the
Commonwealth had waived its sovereign immunity by
consenting to suit. The District Court rejected this
possibility as well:

       The only way that plaintiff can assert a claim under
       S 504, then, is if the Commonwealth of Pennsylvania
       has waived its sovereign immunity. It clearly has not
       done so explicitly, as there is no legislation that can be
       so construed. In order for Pennsylvania to have
       implicitly waived its immunity by accepting federal
       funds, the conditions on the grant of money must be
       unambiguously expressed by Congress. Congress must
       also be specific; a "general authorization" does not
       suffice. . . . As plaintiff does not argue that there is any
_________________________________________________________________

6. In support, the District Court cited Garrett, Kimel, City of Boerne v.
Flores, 521 U.S. 507 (1997), and Chittister v. Department of Community
and Economic Development, 226 F.3d 223 (3d Cir. 2000). Op. at 4-5.

                                10


       connection between federal funds received by the state
       and his Rehabilitation Act claim, I hold that the
       Commonwealth of Pennsylvania has not waived its
       sovereign immunity in this case.
Op. at 5-7. In reaching this result, the District Court
endorsed the dissenting opinion in Jim C. v. United States,
235 F.3d 1079, 1082-85 (8th Cir. 2000) (en banc)
(Bowman, J., dissenting), which required "a nexus between
the purposes of the federal funding and the conditions
placed on their receipt." Op. at 6.

We reserve consideration on the abrogation issue. But we
disagree with the able District Court’s conclusions on the
Commonwealth’s waiver of sovereign immunity. The
Supreme Court has recognized S 504 of the Rehabilitation
Act, following the 1986 amendment, to be an
"unambiguous waiver of the State’s Eleventh Amendment
immunity." Lane v. Pena, 518 U.S. 187, 200 (1996). As
noted, the 1986 amendment was enacted in response to the
Supreme Court’s decision in Atascadero State Hospital v.
Scanlon, 473 U.S. 234 (1985), which held that"mere receipt
of federal funds" was insufficient to constitute a waiver of
sovereign immunity to Rehabilitation Act claims. Id. at 246.
The Atascadero State Hospital Court stated that if a statute
"manifest[s] a clear intent to condition participation in the
programs funded under the Act on a State’s waiver of its
constitutional immunity," federal courts would have
jurisdiction over claims against states accepting federal
funds. Id. at 247.

It appears that Congress responded to the Supreme
Court’s direction. Section 2000d-7 of the Rehabilitation Act,7
as amended, represents a "clear intention," as mandated by
Atascadero State Hospital. Enacting the amendment to
S 2000d-7, Congress put states on notice that by accepting
federal funds under the Rehabilitation Act, they would
_________________________________________________________________

7. This appeal implicates several statutes. Section 2000d-7, as amended,
provides states cannot be immune under the Eleventh Amendment from
suits in federal court under S 504 of the Rehabilitation Act. Section 504
of the Rehabilitation Act, in turn, prohibits discrimination against
persons with disabilities under "any program or activity receiving Federal
financial assistance." Section 504 is codified at 29 U.S.C. S 704(a).

                                11


waive their Eleventh Amendment immunity to
Rehabilitation Act claims.8 Accord United States Dep’t of
Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605
(1986) ("Under . . . Title VI, Title IX, andS 504, Congress
enters into an arrangement in the nature of a contract with
the recipients of the funds: the recipient’s acceptance of the
funds triggers coverage under the nondiscrimination
provision.").9 In Lane, the Supreme Court recognized the
"care with which Congress responded to our decision in
Atascadero by crafting an unambiguous waiver of the
States’ Eleventh Amendment immunity." 518 U.S. at 200.

Six other courts of appeals have found under the plain
language of the amended Rehabilitation Act statute that
accepting federal funds results in a waiver of Eleventh
Amendment immunity for the "program or agency" receiving
the funds. Nihiser, 269 F.3d at 628-29; Jim C., 235 F.3d at
1081-82; Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir.
2000); Pederson v. La. St. Univ., 213 F.3d 858, 875-76 (5th
Cir. 2000); Sandoval v. Hagan, 197 F.3d 484, 493-94 (11th
Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001);
Litman v. George Mason Univ., 186 F.3d 544, 554 (4th Cir.
1999); Clark v. California, 123 F.3d 1267, 1271 (9th Cir.
1997). We agree with their conclusions.

Under the statutory definitions in the Rehabilitation Act,
the state, as a whole, cannot be a "program or activity." As
other courts have noted, if the entire state government were
_________________________________________________________________

8. To reiterate, the 1986 amendment provides:"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 . . . ." 42 U.S.C.S 2000d-7(a)(1).

9. While the 1986 amendment was under consideration, the Department
of Justice stated to Congress, "To the extent that the proposed
amendment is grounded on congressional spending powers, [it] makes it
clear to states that their receipt of Federal funds constitutes a waiver of
their [E]leventh [A]mendment immunity." 132 CONG. REC. 28,624(1986).
When signing the bill, President Reagan explained the Rehabilitation Act
"subjects states, as a condition of their receipt of federal financial
assistance, to suits for violation of federal laws prohibiting
discrimination on the basis of handicap, race, age, or sex to the same
extent as any other public or private entities." 22 Weekly Comp. Pres.
Doc. 1421 (Oct. 27, 1986), reprinted in 1986 U.S.C.C.A.N. 3554.

                                12


subject to S 504 whenever one of its components received
federal funds, subsection (b)(1)(B) would be redundant. See
Jim C., 235 F.3d at 1081 n.3 (noting that under the flawed
interpretation, "both the distributing and receiving state
entities would already be covered under (b)(1)(A) whenever
either receives federal funds"); Lightbourn v. County of El
Paso, 118 F.3d 421, 427 (5th Cir. 1997); Schroeder v. City
of Chicago, 927 F.2d 957, 962 (7th Cir. 1991). But state
departments or agencies receiving federal funds, like the
Pennsylvania Department of Corrections, qualify under the
relevant statutory definition. 29 U.S.C. S 794(b)(1)(A).

Therefore, if a state accepts federal funds for a specific
department or agency, it voluntarily waives sovereign
immunity for Rehabilitation Act claims against the
department or agency -- but only against that department
or agency. See Coll. Sav. Bank, 527 U.S. at 675 (describing
these determinations as "stringent," in part because of the
Eleventh Amendment’s important federal purpose); see also
Jim C., 235 F.3d at 1081-82:

       To avoid the effect of Section 504 . . . the State would
       be required to sacrifice federal funds only for that
       department. This requirement is comparable to the
       ordinary quid pro quo that the Supreme Court has
       repeatedly approved; the State is offered federal funds
       for some activities, but in return, it is required to meet
       certain federal requirements in carrying out those
       activities.

(citations omitted).10
_________________________________________________________________

10. In two recent cases, the courts held that a state is not protected by
sovereign immunity against a suit against state officials by a person
claiming benefits promised under the federal Medicaid law. See Westside
Mothers v. Haveman, 289 F.3d 852, 857 (6th Cir. 2002) ("If a state does
choose to participate [in the Medicaid program], Congress may then
condition receipt of federal moneys upon compliance with federal and
statutory directives . . . . A state can decline to participate in Medicaid.")
(quotations and citations omitted); Antrican v. Odom, 290 F.3d 178, 190
(4th Cir. 2002) ("North Carolina elected to participate in the federal
Medicaid program and, therefore, to be bound by the requirements of the
Medicaid Act. In doing so, the State agreed to the conditions of
participation, including the possibility that if it failed to conform to the
program as established by federal law, it faced the risk of being ordered
by a federal court to correct the problems in its system. If the State did
not want to face this federal involvement, it was free to decline federal
funds . . . or to decline to operate such a program at all.").

                                13


In this sense, the scope of the Eleventh Amendment
immunity waiver directly correlates to the state department
or agency receiving federal financial assistance. The
Commonwealth of Pennsylvania arguably could limit its
waiver by foregoing certain federal funds. The Court of
Appeals for the Eighth Circuit explained:

       A State and its instrumentalities can avoid Section
       504’s waiver requirement on a piecemeal basis, by
       simply accepting federal funds for some departments
       and declining them for others. The State is accordingly
       not required to renounce all federal funding to shield
       chosen state agencies from compliance with Section
       504.

Jim C., 235 F.3d at 1081. But the Rehabilitation Act’s
definition of "program or activity" sweeps"all the
operations" of a department or agency receiving federal
financial assistance under the Act’s coverage. 29 U.S.C.
S 794(b). Although a particular "activity" (e.g., SCAAP) -- or
the conduct of that "activity" (e.g., funding inmate
educational programs) -- might be the state’s only link to
federal funds, the waiver under S 2000d-7 is structural. It
applies to "all the operations" of the department or agency
receiving federal funds (i.e., the Pennsylvania Department
of Corrections).

A state’s waiver of sovereign immunity is not lightly
granted. The Supreme Court has cautioned: "In deciding
whether a State has waived its constitutional protection
under the Eleventh Amendment, we will find waiver only
where stated ‘by the most express language or by such
overwhelming implications from the text as [will] leave no
room for any other reasonable construction.’ " Edelman v.
Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson
Distilling Co., 213 U.S. 151, 171 (1909)). Mere participation
in a federal program is not sufficient to waive immunity. Id.
at 673. But where a state participates in a federal financial
assistance program "in light of the existing state of the
law," the state is charged with awareness that accepting
federal funds can result in the waiver of Eleventh
Amendment immunity. Id. at 687. In Lane , the Supreme
Court said S 2000d-7 represents "the most express
language" of waiver of Eleventh Amendment immunity. 518

                                14


U.S. at 200. The Commonwealth of Pennsylvania could
reasonably expect that providing federal funds to the
Department of Corrections could lead to the waiver of
Eleventh Amendment immunity against Rehabilitation Act
claims. Accord Stanley, 213 F.3d at 344 ("[T]he ADA and
the Rehabilitation Act are identical for purposes ofS 5. But
the Rehabilitation Act also is a condition on the receipt of
federal funds . . . . [T]he Rehabilitation Act is enforceable in
federal court against recipients of federal largess.").

As noted, the District Court relied on the dissenting
opinion from Jim C. in rejecting Koslow’s claim. The en
banc Court of Appeals for the Eighth Circuit in Jim C.
rejected this analysis, holding, "Congress may require a
waiver of state sovereign immunity as a condition for
receiving federal funds, even though Congress could not
order the waiver directly." 235 F.3d at 1081. We agree.11

The Commonwealth of Pennsylvania accepted federal
financial assistance under SCAAP, and provided these
federal funds to the Department of Corrections. Therefore,
the Commonwealth of Pennsylvania waived immunity for
S 504 claims against its Department of Corrections under
the Rehabilitation Act. Like the majority of courts that have
considered the issue, we hold the Commonwealth’s
acceptance of Rehabilitation Act funds falls under the
second recognized exception to Eleventh Amendment
immunity.12
_________________________________________________________________

11. The District Court and the dissenting judge in Jim C. also focused on
the possible "coercion" engendered by the federal funding of particular
state programs or activities. Those arguments are considered in the
subsequent section on "unconstitutional conditions." The District Court’s
adoption of a "nexus" requirement under South Carolina v. Dole, 483
U.S. 203 (1987), is treated in the section relating to the Spending
Clause.

12. In Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98
(2d Cir. 2001), the Court of Appeals for the Second Circuit held that
S 504 of the Rehabilitation Act "constitutes a clear expression of
Congress’s intent to condition acceptance of federal funds on a state’s
waiver of its Eleventh Amendment immunity." Id. at 113. But the court
found the waiver was ineffective because in 1995, the last date of
discrimination, the state agency did not "know" Title II was effective and

                                15


B.

The Commonwealth defendants also urge affirmance on
two related grounds. First, they contend the provisions
placed on their receipt of Rehabilitation Act funds
constitute "unconstitutional conditions," requiring a
"surrender" of constitutionally protected rights. Cf. Frost &
Frost Trucking Co. v. R.R. Comm’n, 271 U.S. 583, 593-94
(1926) ("[T]he state . . . may not impose conditions which
require the relinquishment of constitutional rights.. . . It is
inconceivable that the guaranties embedded in the
Constitution of the United States may thus be manipulated
out of existence."). Because the federal government is not
required to provide states with funds does not mean it may
condition distributions on arguably unconstitutional
grounds. E.g., Speiser v. Randall, 357 U.S. 513, 526 (1958)
(the government may not act indirectly "to produce a result
which [it] could not command directly"). We exercise
plenary review.

The "constitutionally protected right" the Commonwealth
defendants contend they must "sacrifice" upon accepting
federal funds is their Eleventh Amendment immunity from
suits under the Rehabilitation Act. The Commonwealth
defendants draw analogies to select seminal -- and dated --
"unconstitutional conditions" cases,13 when the Supreme
Court struck down states’ attempts to force certain litigants
to waive immunity from suit in state court. Cf. Barron v.
Burnside, 121 U.S. 186, 199 (1887) ("As the Iowa statute
makes the right to a permit dependent on the surrender by
_________________________________________________________________

would therefore believe Title II’s abrogation for Title II claims made
S 504’s waiver redundant. Id. at 114. This argument was not briefed or
argued before the District Court. We note, however, that the ADA was
not enacted to alter existing causes of action. See 42 U.S.C. S 12201(b)
(retaining existing causes of action). Therefore, the "clear intent to
condition participation in the programs funded," required by Atascadero,
473 U.S. at 247, ensured the Commonwealth of Pennsylvania knew that
by accepting certain funds under the Rehabilitation Act for certain
departments or agencies, it waived immunity from suit on Rehabilitation
Act claims for those entities.

13. Of course, the "unconstitutional conditions" doctrine boasts a long
history reaching into more contemporary decisions.

                                16


the foreign corporation of a privilege secured to it by the
constitution and laws of the United States, the statute
requiring the permit must be held to be void."); Home Ins.
Co. v. Morse, 87 U.S. 445, 458 (1874) ("The Constitution of
the United States secures to citizens of another State than
that in which suit is brought an absolute right to remove
their cases into the Federal court upon compliance with the
terms of the act of 1789. The statute of Wisconsin is an
obstruction to this right, is repugnant to the Constitution of
the United States and the laws in pursuance thereof, and
is illegal and void.").

More recently, the Supreme Court held Congress may
condition the receipt of federal funds on a state’s
relinquishment of certain immunities. E.g., Alden, 527 U.S.
at 755 ("the Federal Government [does not] lack the
authority or means to seek the States’ voluntary consent to
private suits"); Coll. Sav. Bank, 527 U.S. at 686 (allowing
Congress to condition the exercise of an Article I power on
a state’s agreement to relinquish Eleventh Amendment
immunity). The Eleventh Amendment issue the
Commonwealth defendants now raise was not precisely
before the Supreme Court in Alden or College Savings Bank.14
Nonetheless, we believe conditioning federal funds on the
waiver of sovereign immunity under the Eleventh
Amendment is not unconstitutional per se. The
"unconstitutional conditions" doctrine is based on the
proposition that government incentives may be inherently
coercive. See Frost & Frost Trucking Co., 271 U.S. at 593
("In reality, the carrier is given no choice, except a choice
between the rock and the whirlpool -- an option to forego
_________________________________________________________________

14. Alden, which principally addressed Congress’s Article I powers of
abrogation, did not involve the receipt of federal funds under the
Rehabilitation Act, but a state’s immunity from suit in its own courts.
Nevertheless, the Alden Court reiterated,"[W]e have not questioned the
general proposition that a State may waive its sovereign immunity and
consent to suit." 537 U.S. at 737 (citing Seminole Tribe, 517 U.S. at 65)).
College Savings Bank, in which the Supreme Court rejected petitioner’s
argument that a state had "impliedly" or "constructively" waived its
immunity from Lanham Act suits in federal court, 527 U.S. at 676-77,
recognized that an "unequivocal" waiver of a state’s sovereign immunity
was constitutionally possible. Id. at 680-81.

                                17


a privilege which may be vital to his livelihood or submit to
a requirement which may constitute an intolerable
burden."). But the Supreme Court has not yet applied the
"unconstitutional conditions" doctrine to cases between two
sovereigns. Unlike private persons, states have the
resources to serve their citizens even if the federal
government, through economic incentives, encourages a
particular result. Cf. New York v. United States , 505 U.S.
144, 171-72 (1992) ("Where the recipient of federal funds is
a State, as is not unusual today, the conditions attached to
the funds by Congress may influence a State’s legislative
choices."); Dole, 483 U.S. at 210-11 (Congress could
influence states’ authority over the legal drinking age
because "[w]ere South Dakota to succumb to the
blandishments offered by Congress and raise its drinking
age to 21, the State’s action in so doing would not violate
the constitutional rights of anyone"). A state’s political
powers -- not the least of which is the power to levy taxes
on its citizens -- help ensure the federal government does
not "coerce" the state through economic "encouragement."
An individual citizen, in contrast, lacks these formidable
institutional resources.

As noted, the Commonwealth could avoid S 504 claims
against the Department of Corrections by declining all
federal funds to the Department of Corrections. Though
this "sacrifice" would doubtless result in some fiscal
hardship -- and possibly political consequences-- it is a
free and deliberate choice by the Commonwealth that does
not rise to the level of an "unconstitutional condition." The
Commonwealth remains free to make the choice: it may
decline federal aid to the Department of Corrections, but
having accepted the federal funds, it is bound by conditions
of the Rehabilitation Act. By accepting SCAAP funds, the
Commonwealth opens the Department of Corrections to
suits under the Rehabilitation Act. For these reasons, we
reject the contention that the receipt of federal funds
constitutes "surrender" of Eleventh Amendment immunity
and is therefore an "unconstitutional condition."15
_________________________________________________________________

15. The parties dispute the authority of Petty v. Tennessee-Missouri
Bridge Commission, 359 U.S. 275 (1959), where the Supreme Court

                                18


C.

The Commonwealth defendants also maintain the
conditions placed on the receipt of Rehabilitation Act funds
are so "unrelated" to the "purpose" of the federal funds as
to violate the Spending Clause. U.S. CONST. art. I, S 8, cl. 1.
Specifically, the Commonwealth defendants suggest the
federal government’s interest in particular programs or
projects of the Department of Corrections is too attenuated
from the "general" waiver of immunity respecting
Rehabilitation Act claims. We exercise plenary review over
this question of law.

Federal statutes are presumed constitutional. Reno v.
Condon, 528 U.S. 141, 147 (2000); Union Pac. R.R. Co. v.
United States, 99 U.S. (9 Otto) 700, 718 (1878).
Nevertheless, Congress’s spending power is subject to
certain restrictions. United States v. Butler , 297 U.S. 1, 78
(1936). Spending Clause legislation must: (1) pursue the
_________________________________________________________________

upheld Congress’s acquiescence to a bi-state compact between
Tennessee and Missouri based on the states’ agreement to confer federal
jurisdiction on claims against the compact. Id. at 277, 281-82. If
Congress can never require a state to waive Eleventh Amendment
immunity in exchange for a federal benefit, Petty would have been
decided differently. The Commonwealth defendants seek to distinguish
Petty, claiming it involved three "sovereigns" and is inapposite. But if
Congress can constitutionally condition a two-state gratuity for a joint
agency, as the Supreme Court said it could in Petty, it surely can do so
for one state and one of its agencies.
It is clear that Congress’s decision to disburse federal funds may be
coupled with preconditions of acceptance. In MCI Telecommunications
Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491 (2001), we said, "[B]oth
the grant of consent to form an interstate compact and the disbursement
of federal monies are congressionally bestowed gifts or gratuities, which
Congress is under no obligation to make, which a state is not otherwise
entitled to receive, and to which Congress can attach whatever
conditions it chooses." Id. at 505. We also noted that in Commerce
Clause cases, "the authority to regulate local telecommunications is a
gratuity to which Congress may attach conditions, including a waiver of
immunity to suit in federal court. Thus, the submission to suit in federal
court . . . is valid as a waiver, conditioned on the acceptance of a
gratuity or gift, as permitted by College Savings." Id. at 509. On balance,
we believe Petty and MCI Telecommunications support our conclusion.

                                19


general welfare; (2) impose unambiguous conditions on
states, so they can exercise choices knowingly and with
awareness of the consequences; (3) impose conditions
related to federal interests in the program; and (4) not
induce unconstitutional action. Dole, 483 U.S. at 207-08,
210.

The District Court found no "connection between"
Rehabilitation Act funds received by the Department of
Corrections and Koslow’s discrimination claim.16 On appeal,
the Commonwealth defendants contend an Eleventh
Amendment waiver must be specifically "tailored" to a
particular federal interest. Because Koslow has purportedly
failed to demonstrate a federal interest in SCAAP funds
received by the Pennsylvania Department of Corrections,
the Commonwealth defendants contend S 504 is
demonstrably unconstitutional under the Spending Clause.
Cf. Jim C., 235 F.3d at 1084 (Bowman, J., dissenting)
(quotation and citation omitted).

We disagree. The Supreme Court in Dole declined to
"define the outer parameters of the ‘germaneness’ or
‘relatedness’ limitation on the imposition of conditions
under the spending power." 483 U.S. at 208 n.3. Therefore,
one need only identify a discernible relationship imposed by
a Rehabilitation Act condition on a "department or agency"
and a federal interest in a program it funds. Through the
Rehabilitation Act, Congress has expressed a clear interest
in eliminating disability-based discrimination in state
departments or agencies. Alexander v. Choate, 469 U.S.
287, 295-97 (1985). 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.

Moreover, S 504 governs only a "program or activity"
receiving federal funds. To put it another way, the waiver of
immunity conditioned on receipt of Rehabilitation Act funds
applies on an agency-by-agency, or a department-by-
_________________________________________________________________

16. The District Court did not explicitly engage in the Dole analysis.

                                20


department, basis. 29 U.S.C. S 794(b).17 This limitation
helps ensure the waiver accords with the "relatedness"
requirement articulated in Dole. The Commonwealth
defendants accepted funds under SCAAP. Rehabilitation Act
funds received by specific departments or agencies are not
tracked. For our purposes, all funds received by the
Department of Corrections under the Rehabilitation Act are
fungible. It is virtually impossible to determine whether
federal dollars paid for Koslow’s salary or any benefits he
received. Cf. Hoxworth v. Blinder, Robinson & Co., Inc., 903
F.2d 186, 195 (3d Cir. 1990) ("Legally as well as
economically, money is fungible.").

Both Title VI and Title IX, which have been upheld as
valid Spending Clause legislation, prohibit race and sex
discrimination by "programs" receiving federal funds. E.g.,
Grove City Coll. v. Bell, 465 U.S. 555, 571 n.21 (1984)
(finding employees who work in an education program
receiving federal assistance are protected under Title IX
"even if their salaries are not funded by federal money"
(quotations and citations omitted)); Lau v. Nichols, 414 U.S.
563, 569 (1974) ("The Federal Government has power to fix
the terms on which its money allotments to the States shall
be disbursed. Whatever may be the limits of that power,
they have not been reached here.") (citations omitted) (Title
VI).18 Similarly, the conditions imposed on the
Commonwealth defendants for accepting funds under
SCAAP do not abridge the Spending Clause.

For these reasons, Koslow’s Rehabilitation Act claim
against the Pennsylvania Department of Corrections is not
constitutionally barred.
_________________________________________________________________

17. The legislative history accompanying the bill indicates, by way of
example: "If federal health assistance is extended to a part of a state
health department, the entire health department would be covered in all
of its operations." S. Rep. No. 64, 100th Cong., 2d Sess. 16 (1987).

18. See also Barnes v. Gorman, ___ U.S. ___, 122 S. Ct. 2097, 2100
(2002) ("Thus, the remedies for violations ofS 202 of the ADA and S 504
of the Rehabilitation Act are coextensive with the remedies available in
a private cause of action brought under Title VI of the Civil Rights Act
of 1964 . . . .").

                                21


V.

We now turn to Koslow’s claims under the ADA for
prospective relief against SCI-Graterford Superintendent
Vaughn.19 The District Court found Koslow could not bring
these claims against Vaughn in either his individual or his
official capacity because the ADA does not contemplate
such "individual, or supervisor, liability." Op. at 3. Before
reaching this conclusion, however, the District Court cited
a footnote from Garrett, in which the Supreme Court said:

       Our holding here that Congress did not validly
       abrogate the States’ sovereign immunity from suit by
       private individuals for money damages under Title I
       does not mean that persons with disabilities have no
       federal recourse against discrimination. Title I of the
       ADA still prescribes standards applicable to the States.
       Those standards can be enforced by the United States
       in actions for money damages, as well as by private
       individuals in actions for injunctive relief under Ex
       parte Young, 203 U.S. 123 (1908).20

536 U.S. at 374 n.9. The District Court then concluded,
"More significant is the fact that even were I to read the
Second Amended Complaint to plead an ADA claim
explicitly against Superintendent Vaughn, there is no
individual, or supervisor, liability under the ADA." Op. at 3.
We will first consider the statutory issue before turning to
the constitutional argument. We exercise plenary review
over both.
_________________________________________________________________

19. As noted, after Garrett (which barred claims under Title I of the ADA
against states) and the District Court’s dismissal of Koslow’s Title II
claims (which is not appealed), this claim for prospective injunctive relief
against Vaughn is Koslow’s only remaining ADA claim.

20. In Ex parte Young, the Supreme Court found a state official acting in
violation of the Constitution or federal law acts ultra vires and is no
longer entitled to the state’s immunity from suit. The "Young fiction"
allows courts to avoid entering judgments directly against the state while
permitting individual actions against officials violating federal law.

                                22


A.

Title I of the ADA, incorporating the enforcement scheme
of the Civil Rights Act of 1964, authorizes private injunctive
suits against a "respondent," defined by statute to include
an "employer." 42 U.S.C. SS 2000e(n), 2000e-5(f)-(g). The
District Court’s analysis focused on whether there is
"individual" or "supervisor" liability under the statute. But
both Title I and Title VII define "employer" to include
persons "engaged in an industry affecting commerce who
has 15 or more employees . . . and any agent of such
person." 42 U.S.C. SS 2000e(b), 12111(5)(A). State
governments can constitute "employers" under the statute.21
As the Supreme Court held in Garrett:

       [Title I of] [t]he ADA prohibits certain employers,
       including the States, from ‘discriminat[ing] against a
       qualified individual with a disability because of the
       disability in regard to job application procedures, the
       hiring, advancement, or discharge of employees,
       employee compensation, job training, and other terms
       conditions, and privileges of employment.

531 U.S. at 360-61 (citations omitted). And for the same
reasons that we have allowed Title VII claims to proceed
against public officials in their official capacities, an official
sued in his official capacity is an "agent" of the state
_________________________________________________________________

21. 42 U.S.C. S 2000e(b) provides:

       The term "employer" means a person engaged in an industry
       affecting commerce who has fifteen or more employees for each
       working day in each of twenty or more calendar weeks in the
       current or preceding calendar year, and any agent of such a person,
       but such term does not include (1) the United States, a corporation
       wholly owned by the Government of the United States, an Indian
       tribe, or any department or agency of the District of Columbia
       subject by statute to procedures of the competitive service (as
       defined in section 2102 of Title 5), or (2) a bona fide private
       membership club (other than a labor organization) which is exempt
       from taxation under section 501(c) of Title 26, except that during the
       first year after March 24, 1972, persons having fewer than twenty-
       five employees (and their agents) shall not be considered employers.

Although the United States is excluded by this definition, state
governments are not.

                                23


employer under Title I of the ADA. Cf. In re Montgomery
County, 215 F.3d 367, 372-75 (3d Cir. 2000) (allowing
officials in their official capacities to be held liable under
Title VII).

While there appears to be no individual liability for
damages under Title I of the ADA, cf. EEOC v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1280 n.4 (7th Cir. 1995),
prospective relief against state officials acting in their
official capacities may proceed under the statute. The
complaint alleges misconduct by Vaughn only as an official
supervisor at SCI-Graterford. Therefore, under the statute,
insofar as Koslow seeks prospective injunctive relief, he
states a cognizable claim against SCI-Graterford
Superintendent Vaughn, but only in his representative --
not his individual -- capacity.

B.

The parties also dispute whether Koslow’s ADA
prospective claim for injunctive relief against SCI-Graterford
Superintendent Vaughn is barred by the Eleventh
Amendment. Cf. Seminole Tribe, 517 U.S. at 73. Said
another way, the parties disagree whether the Ex parte
Young doctrine applies in the first instance. As noted, the
Eleventh Amendment bars private suits against a state
sued in its own name except in certain narrow
circumstances. Alden, 527 U.S. at 755-56. But the
Supreme Court has said, "Both prospective and
retrospective relief implicate Eleventh Amendment
concerns, but the availability of prospective relief of the sort
awarded in Ex parte Young gives life to the Supremacy
Clause. Remedies designed to end a continuing violation of
federal law are necessary to vindicate the federal interest in
assuring the supremacy of that law." Green v. Mansour, 474
U.S. 64, 68 (1985).

The Commonwealth defendants contend the Eleventh
Amendment only permits suits against officials in their
individual capacities, barring suits against officials in their
representative capacities absent waiver or abrogation. We
disagree. The Eleventh Amendment has not been
interpreted to bar a plaintiff ’s ability to seek prospective

                                24


relief against state officials for violations of federal law.
Official-capacity suits are an alternative way to plead
actions against entities for which an officer is an agent. See
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985):

       Unless a State has waived its Eleventh Amendment
       immunity or Congress has overridden it, however, a
       State cannot be sued directly in its own name
       regardless of the relief sought. Thus, implementation of
       state policy or custom may be reached in federal court
       only because official-capacity actions for prospective
       relief are not treated as actions against the State.

(citations omitted); see also Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md., ___ U.S. ___, 122 S. Ct. 1753, 1760 (2002)
("In determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need
only conduct a straightforward inquiry into whether[the]
complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.")
(quotations and citations omitted); Seminole Tribe, 517 U.S.
at 73 (Eleventh Amendment no bar to "federal jurisdiction
over a suit against a state official when that suit seeks only
prospective injunctive relief in order to end a continuing
violation of federal law") (quotation and citation omitted).

Three other courts of appeals have allowed suits for
purely injunctive relief under the ADA against state
officials. See Carten v. Kent St. Univ., 282 F.3d 391, 396
(6th Cir. 2002) ("[A]n official who violates Title II of the ADA
does not represent ‘the state’ for purposes of the Eleventh
Amendment, yet he or she nevertheless may be held
responsible in an official capacity for violating Title II [of the
ADA], which by its terms applies only to ‘public
entit[ies].’ "); Gibson v. Ark. Dept. of Corr., 265 F.3d 718,
720 (8th Cir. 2001) ("The Eleventh Amendment is not a bar
to federal jurisdiction over a suit against a state official
when that suit seeks only prospective injunctive relief in
order to end a continuing violation of federal law.")
(quotations and citations omitted); Roe No. 2 v. Ogden, 253
F.3d 1225, 1233-34 (10th Cir. 2001). In a different context,
we have said, "The principle which emerges from Young and
its progeny is that a state official sued in his official
capacity for prospective injunctive relief is a person within

                                25


section 1983, and the Eleventh Amendment does not bar
such a suit." Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir.
1998).

For these reasons, federal ADA claims for prospective
injunctive relief against state officials are authorized by the
Ex parte Young doctrine. The Court of Appeals for the
Eighth Circuit’s analysis in Gibson is apposite. In that case,
the court found Seminole Tribe, on which the
Commonwealth defendants rely, dealt with a "markedly
different" statute than the ADA, the Indian Gaming
Regulatory Act (IGRA). 265 F.3d at 720.22 Unlike the IGRA,
the court found there were several enforcement
mechanisms for plaintiffs to sue under Titles I or II of the
ADA. Id. at 721 (noting all remedies of Title VII of the Civil
Rights Act of 1964, including equitable orders and
contempt proceedings, are applicable to ADA Title I
plaintiffs). Second, unlike the IGRA, Congress "chose to use
existing civil rights enforcement mechanisms" when
drafting the ADA. Id. In doing so, Congress was aware that
federal district courts had issued orders "compelling state
officials to perform their statutory obligations." Id. at 722.
Third, the court noted, a single state official can enforce an
ADA provision, while complying with the IGRA requires
cooperative efforts by state negotiators and ratification by
the state legislature. Id. Considering all of these factors, the
court held, "the ADA is a more suitable candidate than
IGRA for Ex parte Young suits designed to change the
behavior of specific government officials." Id.
_________________________________________________________________

22. In Seminole Tribe, an Indian tribe sued the governor of Florida under
the IGRA. The Supreme Court held Ex parte Young did not apply to the
tribe’s suit against the governor because Congress did not intend to
authorize federal jurisdiction under Ex parte Young to enforce the IGRA.
Seminole Tribe, 517 U.S. at 75 n.17, 76. The IGRA allows tribes to sue
states in federal district court if a state does not negotiate regarding
certain gaming rights, but remedial authority is minimal. The Supreme
Court dismissed the tribe’s IGRA claim, holding,"[W]here Congress has
prescribed a detailed remedial scheme for the enforcement against a
State of a statutorily created right, a court should hesitate before casting
aside those limitations and permitting an action against a state officer
based upon Ex parte Young." Id. at 74. The Court said allowing actions
against an official under Ex parte Young would expand remedial powers
beyond what Congress intended. Id. at 75.

                                26


When the relief sought is prospective injunctive relief, the
request "is ordinarily sufficient to invoke the Young fiction."
Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997).
Koslow’s claim for reinstatement, with accommodations for
his disability, is the type of injunctive, "forward-looking"
relief cognizable under Ex parte Young. Therefore, he can
state federal claims under the ADA against Superintendent
Vaughn, acting in his official capacity, for prospective
injunctive relief.

VI.

Next, we consider whether the District Court properly
granted summary judgment to PHICO and CompServices on
Koslow’s claims under the ADA and the Rehabilitation Act.
The District Court found these workers’ compensation
providers had no decisionmaking authority over Koslow’s
employment:

       They did not fire plaintiff or refuse him an
       accommodation. PHICO ceased to be involved in any
       way after December 1997, and it is not at all clear that
       plaintiff is complaining about anything that occurred
       during PHICO’s tenure. The only act attributable to
       CompServices is its referral of plaintiff to an
       independent medical examination . . . . [I]t is ludicrous
       to suppose that by furnishing to the Commonwealth
       defendants the information that plaintiff was fit to
       return to work, CompServices was discriminating
       against him . . . .

Op. at 7. We review the grant of summary judgment de
novo. Doe, 242 F.3d at 446.23

A.

From 1990 to 1997, under agreements with the
Commonwealth of Pennsylvania, PHICO was the third-party
_________________________________________________________________

23. The District Court found CompServices and PHICO, agents of their
employer, could be liable even when the principal was immune from
liability. Therefore, the Court found CompServices and PHICO could be
covered entities under the ADA.

                                27


administrator for some portions of the Commonwealth’s
self-insured workers’ compensation plans. PHICO
maintains that these services were primarily ministerial,
such as forwarding information received from health care
providers to the Department of Corrections, calculating
sums correctional facilities owed in benefits, and the like.
For these services, PHICO was paid a flat rate.

PHICO’s Vice President of Claims Operations testified the
company’s compensation contracts applied only to PHICO
employees, not to Commonwealth employees. Koslow
contends a jury was entitled to test the credibility of this
statement, rendering summary judgment inappropriate.
Moreover, Koslow suggests genuine issues of material fact
remain whether PHICO’s "nonfeasance" on his claim
contributed to a "breakdown in the interactive process"
between Koslow and SCI-Graterford, which itself might
constitute a violation of the ADA.

We disagree. The District Court correctly concluded
PHICO had no responsibility for ensuring SCI-Graterford’s
compliance with the ADA and the Rehabilitation Act. Only
SCI-Graterford administrators, not PHICO administrators,
could determine whether Koslow, if "disabled," could be
accommodated. No material issues of fact remain
unresolved on PHICO’s "decisionmaking" authority over
Koslow.

Additionally, although the District Court did not address
this issue directly, we do not believe that under these facts,
PHICO is a "covered entity" under the ADA. Only "covered
entities," as defined in 42 U.S.C. S 12112(a), may be liable
under the statute. Here, PHICO could be a proper
defendant only as the "agent" of Koslow’s employer. Id.
S 12112(2). But in Krouse v. American Sterilizer Co., 126
F.3d 494 (3d Cir. 1997), we rejected an agency theory
similar to Koslow’s, holding that in the absence of evidence
that a third-party workers’ compensation administrator had
harassed plaintiff at the direction of plaintiff ’s employer,
the administrator was "not an agent" of the employer and
therefore was "not a covered entity under the ADA." Id. at
505. As in Krouse, Koslow cannot demonstrate PHICO
acted at the direction of the Pennsylvania Department of
Corrections in "wrongly" denying his claim.

                                28


B.

On December 29, 1997, CompServices began providing
third-party workers’ compensation administration services
for claims against SCI-Graterford accruing prior to July
1997. Koslow contends CompServices, like PHICO, had
contractual and statutory duties -- albeit "implicit" ones --
not to discriminate against SCI-Graterford employees.
Similar to his previous argument, Koslow contends there is
an issue of fact whether CompServices’s obligations to
comply with Title II of the ADA extended to the employees
of SCI-Graterford.

We disagree. CompServices, which assumed
responsibilities for the SCI-Graterford account in December
1997, had, at most, only a minimal connection with
Koslow’s claim. Like PHICO, CompServices had no
decisionmaking authority over Koslow and had no role in
the alleged discrimination. For the reasons noted,
CompServices is not a "covered entity" for ADA purposes.

The District Court correctly disposed of Koslow’s ADA
claims against PHICO and CompServices.

VII.

Finally, we consider the dismissal of Koslow’s state law
claims against PHICO and CompServices. The District
Court concluded these PHRA claims were not cognizable
because the statute does not define "employer" to include
an "agent" thereof:

        The PHRA applies to "any employer[,]" but unlike the
        ADA does not contain a reference to an "agent" thereof.
        Since the PHRA does not define "employer," courts look
        to the common law indicia of a master-servant
        relationship . . . . The employer’s power to control the
        nature and parameters of the employee’s activities is
        the key to the relationship. . . . I reject out of hand
        plaintiff ’s contention that the Supremacy Clause
        requires the term "employer" as it is used in the PHRA
        not to be interpreted any more narrowly than it is
        defined in the ADA or Title VII.

We exercise plenary review over this question of law.

                                 29


The PHRA defines "person" as "includ[ing] one or more
individuals, partnerships, associations, organizations,
corporations . . . [and] . . . any . . . agent. . . thereof." 43
P.S. S 954(a). Koslow contends the PHRA defines "person" to
include an "agent," so PHICO and CompServices, as
"alleged agents" of the Department of Corrections, can be
liable. We disagree. No Pennsylvania authority supports
Koslow’s interpretation of the PHRA. In Dici v.
Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996), we said,
"The employment discrimination provision of the PHRA
declares only that ‘any employer’ may be liable." We have
never said "any person" can be liable under the statute. See
also Van Horn v. Elbeco Inc., No. 94-2720, 1996 WL
385630, at *4 n.18 (E.D. Pa. July 10, 1996) ("[T]he PHRA
has no . . . reference to agents of [an] employer in its
definition of ‘employer.’ "). Additionally, under the PHRA,
the "person" must "employ four or more persons," arguably
expressing the intent that only employers be held liable.
The District Court properly disposed of Koslow’s state law
claims.

VIII.

For these reasons we will reverse in part and affirm in
part. We will reverse the judgment of the District Court
holding the Commonwealth had not waived sovereign
immunity to Rehabilitation Act claims. We also will reverse
the judgment of the District Court denying Koslow’s ADA
claim for prospective injunctive relief against SCI-Graterford
Superintendent Vaughn, acting in his official capacity. In
all other respects, we will affirm the judgment of the
District Court. We will remand for further proceedings
consistent with this opinion.

A True Copy:
Teste:

        Clerk of the United States Court of Appeals
        for the Third Circuit
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