Opinion
Civil Action No. 99-3752 Section "N"(2).
September 18, 2000.
ORDER AND REASONS
OJ JOSEPH C. WILKINSON, JR., United States Magistrate Judge.
TX Plaintiff, Cheryl A. Sommer, sued her former employer, the Louisiana Department of Transportation and Development, alleging that defendant had discriminated against her on the basis of her disability in violation of Title 1 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Complaint, Record Doc. No. 1. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon the written consent of all parties. Record Doc. No. 7.
Defendant filed a motion to dismiss on the basis of sovereign immunity. Defendant argues that Congress, in enacting the ADA, did not validly exercise its powers to enforce the Fourteenth Amendment and to abrogate the States' sovereign immunity under the Eleventh Amendment. Record Doc. No. 9. Plaintiff filed a timely opposition memorandum, in which she contends that existing Fifth Circuit precedent precludes defendants argument. Record Doc. No. 15. Defendant received leave to file two supplemental memoranda. Record Doc. No. 11, 12, 13, 14.
ANALYSIS
In Coolbaugh v. State, 136 F.3d 430, 432, 438 (5th Cir. 1998), the Fifth Circuit considered the exact question presented in the instant motion and concluded that Congress validly exercised its enforcement powers in the ADA and effectively abrogated Louisiana's Eleventh Amendment immunity. This Court is bound by that precedent, which has not been overruled by the Supreme Court or the Fifth Circuit en banc. A panel of the Fifth Circuit has recently held that it remains bound by Coolbaugh. See Neinast v. State, 217 F.3d 275, 280 (5th Cir. 2000) ("Circuit precedent bars our consideration of whether the ADA as a whole exceeds Congress's power to abrogate under § 5."), pet. for cert. filed, No. 00-263 (Aug. 16, 2000). This Court is no less bound by Coolbaugh, until such time, if ever, that the Fifth Circuit overrules it.
Neither Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, 650 (2000) (holding that Congress exceeded its enforcement authority and therefore failed to abrogate the States' sovereign immunity in the Age Discrimination in Employment Act), nor Kazmier v. Widmann, 2000 WL 1210502, at *4, *6 (5th Cir. Aug. 25, 2000) (same as to certain sections of the Family Medical Leave Act), is on point with the instant case, and they do not compel a different conclusion. See id. at *6 (although "the continuing validity of Coolbaugh has been called seriously into question by [Kimel], . . . [w]e need not reexamine the holding of Coolbaugh in detail . . . because the ADA is an entirely different statute than the [Family Medical Leave Act]"); but see Cooley v. Mississippi Dep't of Transp., 96 F. Supp.2d 565, 568 (S.D. Miss. 2000) (holding, based on the analysis in Kimel, that the ADA is not a valid exercise of Congress's enforcement and abrogation powers and predicting that the Fifth Circuit would reverse Coolbauch under the same analysis, when squarely presented with the question).
In my view, this Court remains bound by Coolbaugh, as stated in Neinast. The Cooley court may ultimately prove correct in its prediction that the Fifth Circuit will reverse Coolbaugh. I decline to engage in such prognostication, however, viewing my role as finding and applying precedent, not making it where precedent already exists.
Accordingly, IT IS ORDERED that defendant's motion to dismiss is DENIED.