     Case: 19-50286   Document: 00515339200     Page: 1   Date Filed: 03/10/2020




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

                                                                   FILED
                                 No. 19-50286                March 10, 2020
                                                              Lyle W. Cayce
ALBERT W. BLOCK, JR.,                                              Clerk


             Plaintiff - Appellant

v.

TEXAS BOARD OF LAW EXAMINERS,

             Defendant - Appellee




                Appeals from the United States District Court
                      for the Western District of Texas


Before DAVIS, SMITH, and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Out-of-state lawyers can be admitted to the State Bar of Texas without
taking the Texas bar exam if, among other things, they have actively practiced
law for at least five of the last seven years. Albert Block, Jr., a licensed
Louisiana lawyer, sued the Texas Board of Law Examiners for its refusal to
waive that requirement to accommodate his disability. Block appeals the
district court’s dismissal of his claims as barred by sovereign immunity.
      The district court held “that the accommodation obligation imposed by
Title II” of the Americans with Disabilities Act (“ADA”)—at least “as it relates
to non-fundamental rights”—“exceeds that imposed by the Constitution and is
not a valid abrogation of state sovereign immunity.” But because Block did not
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                                       No. 19-50286
allege any conduct that violates Title II, we AFFIRM the dismissal of his claims
under the first prong of United States v. Georgia, and do not reach the issue
relied on by the district court. However, because Block’s claims should have
been dismissed without prejudice, we modify the district court’s judgment from
a dismissal with prejudice to a dismissal without prejudice.
                                     I. Background
       Albert Block, Jr. practiced law in Louisiana from 1977 until 2004, when
his disability 1 forced him to stop. Over ten years later, Block sought admission
to the State Bar of Texas. Licensed lawyers can be admitted without taking
the Texas bar exam if they (1) have actively practiced law for at least five of
the last seven years (the “active practice requirement”); (2) have a J.D. from
an approved law school; and (3) have not previously failed the Texas bar exam.
Block decided to sit for the bar exam because, he says, he was told there would
be no waiver of the active practice requirement for a disabled applicant.
       Block failed the Texas bar exam in July 2015 and again in February
2016. Then, in May 2017, Block applied for admission without examination to
the Texas bar, explaining that his disability prevented him from satisfying the
active practice requirement. Because Block “recently failed the bar exam twice”
and “ha[d] not practiced law since 2004,” the Texas Board of Law Examiners
(“TBLE”) denied his application.
       Block sued TBLE, alleging that the active practice requirement—and
TBLE’s refusal to waive it for him—violate the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act, and the Equal Protection Clause. He also
alleged that TBLE retaliated against him for requesting the waiver by filing a
complaint against him for the unauthorized practice of law.


       1 Block alleges that he suffers from chronic fatigue, severe osteoarthritis, and a host
of physical conditions and ailments resulting from chemotherapy and radiation treatment for
Stage 4 esophageal cancer.
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                                      No. 19-50286
      TBLE moved to dismiss Block’s complaint under Rules 12(b)(1) and (6).
The district court adopted the magistrate judge’s report and recommendation
and dismissed Block’s claims. Specifically, the court found that (1) Title II of
the ADA does not validly abrogate states’ sovereign immunity “as it relates to
non-fundamental rights”; (2) Block did not plead that TBLE waived its
immunity under the Rehabilitation Act by accepting federal funds; and (3) the
Ex parte Young exception did not apply to Block’s Fourteenth Amendment
claims.
                                    II. Discussion
      We review de novo a Rule 12(b)(1) dismissal based on sovereign
immunity, 2 applying the same standard as the district court. “When a Rule
12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court
should consider the Rule 12(b)(1) jurisdictional attack before addressing any
attack on the merits.” 3
                              A. ADA Title II Claims
      Under the Eleventh Amendment, federal courts lack jurisdiction over
suits against nonconsenting states. Congress can abrogate this immunity if it
(1) “makes its intention to abrogate unmistakably clear in the language of the
statute” and (2) “acts pursuant to a valid exercise of its power under § 5 of the
Fourteenth Amendment.” 4 Here, the first prong is easy: Congress expressly
declared that states “shall not be immune” from suit for a violation of the ADA. 5
The second—whether Congress’s purported abrogation was a valid exercise of
its § 5 power—is more complicated.
      Section 5 legislation that targets facially constitutional conduct is valid
only if it demonstrates “a congruence and proportionality between the injury

      2 Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005).
      3 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
      4 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003).
      5 42 U.S.C. § 12202.

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to be prevented or remedied and the means adopted to that end.” 6 In
Reickenbacker v. Foster, we held that Title II of the ADA, as a whole, fails that
test. 7 But three years later, the Supreme Court held that Title II is congruent
and proportional—and does validly abrogate states’ sovereign immunity—in
“cases implicating the fundamental right of access to the courts.” 8 We did not
decide whether Reickenbacker’s holding remains valid in cases beyond that
specific purview. 9
       The Supreme Court changed the Title II abrogation landscape a second
time with United States v. Georgia. 10 Importantly, the Court established a
three-part test for determining whether Title II validly abrogates states’
sovereign immunity. A court must 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. 11

       Here, the magistrate judge’s report and recommendation (adopted by the
district court) skipped to Step 3, and held that “the accommodation obligation
imposed by Title II, as it relates to non-fundamental rights” like the right to
practice law involved here, “exceeds that imposed by the Constitution and is
not a valid abrogation of state sovereign immunity.” But under Georgia, we do



       6  City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
       7  274 F.3d 974, 983 (5th Cir. 2001).
        8 Tennessee v. Lane, 541 U.S. 509, 533–34 (2004).
        9 See Pace v. Bogalusa City School Board, 403 F.3d 272, 277 n.14 (5th Cir. 2005) (en

banc) (“The continuing validity of Reickenbacker [after Lane] is uncertain.”) (cleaned up).
        10 United States v. Georgia, 546 U.S. 151, 159 (2006).
        11 Id. Under Georgia, only if a plaintiff has alleged conduct that violates Title II and

does not violate the Fourteenth Amendment should a court determine whether Title II is
valid § 5 legislation as to that class of conduct. If a plaintiff alleges no conduct that violates
Title II, the inquiry ends.
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                                       No. 19-50286
not reach that question unless and until it is decided that Block has stated a
claim under Title II. 12
                                              i.
       To establish a prima facie case of discrimination under the ADA, Block
must show (1) he is a “qualified individual” under the ADA; (2) he was excluded
from participation in, or denied the benefits of, services, programs, or activities
for which TBLE is responsible; and (3) the exclusion was by reason of
disability. 13 Title II requires public entities to make “reasonable modifications
in policies, practices, or procedures” for disabled individuals, unless the entity
can show that a modification would “fundamentally alter the nature” of the
service or program it offers. 14 A public entity’s failure to make a reasonable
modification may satisfy the second and third prongs of the prima facie case. 15
Block bears the burden of showing that he requested a modification and that
it was reasonable. 16
       Block alleges that TBLE violated Title II by refusing to waive the active
practice requirement for admission without examination to the State Bar of


       12  Our court has stated it was “unclear” whether Georgia’s first step requires a court
to determine whether the plaintiff has actually stated a claim under Title II, or merely to
identify the conduct she alleges in support of her Title II claim. Hale v. King, 642 F.3d 492,
498 (5th Cir. 2011) (per curiam). In practice, though, we have consistently determined
whether the plaintiff stated a claim at this stage—see id. at 503 (declining to reach Georgia’s
second and third steps where plaintiff failed to state a claim)—and so have most other
circuits. See, e.g., Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir. 2006) (under Georgia, “we must
first ascertain whether any of the University’s alleged conduct states a claim for a violation
of Title II”); Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013)
(same); Bowers v. NCAA, 475 F.3d 524, 553 (3d Cir. 2007) (same); Babcock v. Michigan, 812
F.3d 531, 535 (6th Cir. 2016) (same); Guttman v. Khalsa, 446 F.3d 1027, 1036 (10th Cir. 2006)
(same).
        13 Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004).
        14 28 C.F.R. § 35.130(b)(1)(7)(i); Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,

454–55 & nn. 11–12 (5th Cir. 2005).
        15 See Windham v. Harris Cty., Texas, 875 F.3d 229, 235 (5th Cir. 2017).
        16Reil v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996) (“Reasonable

accommodation is an element of a prima facie case of discrimination under the ADA, and [the
plaintiff] bears the burden of proof of reasonableness.”) (citation omitted).
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Texas. But Title II “does not require States to compromise their essential
eligibility criteria for public programs”—“[i]t requires only reasonable
modifications,” and “only when the individual seeking modification is
otherwise eligible for the service.” 17
       TBLE protects the integrity of its bar by requiring applicants to either
pass the Texas bar exam or meet the three requirements for admission without
examination. 18 The active practice requirement ensures that applicants have
both achieved and maintained the skill and knowledge required to practice law
in Texas. Waiving it to admit a lawyer who has neither passed the Texas bar
exam nor practiced law for thirteen years would not inform TBLE of a vital
fact: does Block currently have the necessary knowledge and skill to practice
law? The modification Block seeks is not a reasonable one. 19
       Because Block has alleged no conduct that violates Title II, TBLE is
entitled to Eleventh Amendment immunity.
                                B. ADA Title V Claims
       With his Title V retaliation claim, Block alleges that TBLE retaliated
against him for requesting a waiver of the active practice requirement by filing
a complaint against him for the unauthorized practice of law. “Title V itself
does not abrogate a state’s sovereign immunity. Instead, a plaintiff may bring


       17  Lane, 541 U.S. at 532 (internal quotation marks omitted).
       18  See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977) (“[T]he regulation of
the bar is at the core of the State’s power to protect the public.”); Goldfarb v. Va. State Bar,
421 U.S. 773, 792 (1975) (recognizing that states “have broad power to establish standards
for licensing practitioners and regulating the practice of professions,” and “[t]he interest of
States in regulating lawyers is especially great”).
        19 Even assuming it were reasonable, Block’s claim still fails under the first prong. A

“qualified individual” is a person with a disability who, “with or without reasonable
modifications . . . meets the essential eligibility requirements” for participation in the public
entity’s program. 42 U.S.C. § 12131; see also Lane, 541 U.S. at 532 (Title II requires
reasonable modifications only when the person seeking them “is otherwise eligible for the
service”). Recall that admission without examination also requires that an applicant have
not previously failed the Texas bar exam. Block recently failed it twice. Even with his
proposed modification, Block wouldn’t be eligible for admission without examination.
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a retaliation claim against a state entity only to the extent that the underlying
claim of discrimination effectively abrogates sovereign immunity of the
particular state.” 20 Because Block’s underlying Title II claim is barred by
sovereign immunity, so is his Title V retaliation claim.
                                C. Rehabilitation Act Claims
         Block also brings discrimination and retaliation claims under the
Rehabilitation Act. A state entity waives sovereign immunity under § 504 of
the Rehabilitation Act by accepting federal financial assistance. 21 To state a
claim under the Rehabilitation Act, “a plaintiff must allege that the specific
program or activity with which he or she was involved receives or directly
benefits from federal financial assistance.” 22 Because Block did not allege that
TBLE receives federal funds, the district court did not err in dismissing his
Rehabilitation Act claims. 23
                            D. Fourteenth Amendment Claims
         Block next argues the district court erred in holding that the Ex parte
Young exception to Eleventh Amendment immunity does not apply to his
Fourteenth Amendment claims. That exception allows a plaintiff to sue
individual state officials for prospective relief—a legal fiction that skirts
around the Eleventh Amendment. “To fall within the Ex parte Young exception
to sovereign immunity, however, a plaintiff must name individual state
officials as defendants in their official capacities.” 24 Because Block sued only



         20   Dottin v. Texas Dep't of Criminal Justice, 627 F. App'x 397, 398 (5th Cir. 2015) (per
curiam).
         21   Miller v. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342, 345 (5th Cir. 2005) (en
banc).
          Taylor v. City of Shreveport, 798 F.3d 276, 283 (5th Cir. 2015) (quoting Lightburn
         22

v. Cnty. Of El Paso, Tex., 118 F.3d 421, 427 (5th Cir. 1997)).
       23 TBLE maintains that it is funded solely by application fees and receives no federal

funds. See TEX. GOV’T CODE §§ 82.033, 82.034.
       24 Raj v. Louisiana State Univ., 714 F.3d 322, 328 (5th Cir. 2013).

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TBLE, and no members in their official capacities, Ex parte Young does not
apply. 25
                                  III. CONCLUSION
       Because Block has not alleged conduct that violates Title II (the first step
of Georgia), we AFFIRM the dismissal of his ADA claims as barred by
sovereign immunity, and do not decide whether Congress’s purported
abrogation was a valid exercise of its power under § 5 of the Fourteenth
Amendment. We also AFFIRM the district court’s dismissal of Block’s
Rehabilitation Act and Fourteenth Amendment claims as barred by sovereign
immunity. However, because “[c]laims barred by sovereign immunity are
dismissed without prejudice, not with prejudice,” 26 we modify the district
court’s judgment from a dismissal with prejudice to a dismissal without
prejudice.
       As modified, we AFFIRM the district court’s judgment.




       25 Block further argues that he should have been allowed to amend his complaint—
but he never requested leave from the district court to do so. Instead, he argued the complaint
was sufficient in response to TBLE’s motion to dismiss and in his objection to the magistrate
judge’s report and recommendation. “A party who neglects to ask the district court for leave
to amend cannot expect to receive such dispensation from the court of appeals.” U.S. ex rel.
Willard v. Humana Health Plan of Texas, Inc., 336 F.3d 375, 387 (5th Cir. 2003).
       26 United States v. $4,480,466.16 in Funds Seized from Bank of Am. Account Ending

in 2653, 942 F.3d 655, 666 (5th Cir. 2019).
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