                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2003

Lieberman v. State of DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3540




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"Lieberman v. State of DE" (2003). 2003 Decisions. Paper 373.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/373


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                                                 NOT PRECEDENTIAL

       THE UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

                       No. 01-3540
                       ___________

            ELBERTA BERNICE LIEBERMAN


                              v.


               STATE OF DELAWARE;
            FAMILY COURT OF DELAWARE,

                                   Appellants

                       ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF DELAWARE

                 (D.C. Civil No. 96-cv-00523)
       District Judge: The Honorable Gregory M. Sleet

                       ___________

         Submitted Under Third Circuit LAR 34.1(a)
                       July 7, 2003


BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.




                   (Filed: July 14, 2003)
                                        ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

              Appellee, Elberta Bernice Lieberman, who had worked in a variety of

positions at the Family Court of the State of Delaware for twenty years, filed a complaint

with the EEOC claiming disability discrimination by her supervisor. The EEOC

dismissed Lieberman’s complaint, and sent her a right-to sue letter. In 1996, Lieberman

then sued the State of Delaware and the Family Court of the State of Delaware,1 and her

complaint contains claims under (1) Title II of the Americans with Disabilities Act, 42

U.S.C. § 12101 et seq., (2) Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. §

701 et seq., (3) the anti-retaliation provisions of the ADA, and (4) the anti-retaliation

provisions of the Rehabilitation Act. The District Court granted the State’s motion to

dismiss Lieberman’s Title II claims on the basis of Eleventh Amendment immunity but

denied the State’s motion to dismiss Lieberman’s Rehabilitation Act claims. The State of

Delaware appealed. Since we find that the District Court had jurisdiction over the

Rehabilitation Act claims and that Koslow v. Commonwealth of Pennsylvania, 302 F.3d

161 (3d Cir. 2002), controls the Rehabilitation Act issue, we will affirm.



1.      In 1997, at the request of Lieberman, the District Court stayed this matter for
additional EEO C investigation. A year later, the EEOC dismissed the complaint and
sent another right-to-sue letter.

                                              2
              First, appellants argue that, because Article II, § 2, clause 2 of the U.S.

Constitution vests the Supreme Court with original jurisdiction where a state is a party,

the District Court lacks jurisdiction to hear the suit. Appellants do not mention, however,

the well-established principle that Congress can give lower federal courts concurrent

jurisdiction over matters where the Supreme Court has original jurisdiction. Ames v.

Kansas, 111 U.S. 449 (1884). In fact, ever since the Judiciary Act of 1789, Congress has

assumed that the constitutional grant of original jurisdiction to the Supreme Court could

be made concurrent with the jurisdiction of the lower federal courts. We maintain the

unremarkable position that 28 U.S.C. § 1331 properly provides the District Court with

jurisdiction over this matter.

              Turning to the Eleventh Amendment issue, we note that, while this case was

pending with us, but before briefing, we decided Koslow v. Pennsylvania, 302 F.3d 161

(3d Cir. 2002). In Koslow, a disability discrimination case under § 504 of the

Rehabilitation Act, we had to determine whether the Commonwealth of Pennsylvania had

waived its sovereign immunity by accepting certain federal funds for the Department of

Corrections. Koslow, 302 F.3d at 165. We determined that Congress could require a

state to waive its immunity to suit under the Rehabilitation Act as a condition for

receiving federal funds and had done so. Id. at 172. Since the Commonwealth of

Pennsylvania had accepted federal financial assistance under the State Criminal Alien

Assistance Program, and provided these federal funds to the Department of Corrections,



                                              3
we concluded that the Commonwealth had waived immunity for § 504 claims against its

Department of Corrections under the Rehabilitation Act. Id. at 172.

              Our decision in Koslow is on all fours with this case. At all relevant times,

Lieberman worked in an activity or program of the Family Court that is alleged to be a

recipient and beneficiary of federal financial assistance. We therefore affirm the District

Court’s thoughtful determination that the appellants have waived their Eleventh

Amendment immunity, and that the appellants’ motion to dismiss Lieberman’s claims

under Section 504 of the Rehabilitation Act should have been denied.




_________________________


TO THE CLERK:

              Please file the foregoing opinion.




                                                  /s/ Richard L. Nygaard
                                             Circuit Judge
