The opinion of the court was delivered by: Edmund V. Ludwig, United States District Judge.
Defendant Pennsylvania Department of Public Welfare moves to dismiss
this action under § 503 of the Americans with Disabilities Act,
42 U.S.C. § 12203, and § 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794(d).*fn1 Fed.R.Civ.P. 12(b)(6).*fn2 The motion,
which is based on the Eleventh Amendment's guarantee of sovereign
immunity,*fn3 will be denied.
Congress may abrogate Eleventh Amendment immunity of the States from
suits for money damages by private individuals in federal court when "it
both unequivocally intends to do so and `act[s]
pursuant to a valid grant
of constitutional authority.'" Board of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 962, 148 L.Ed.2d 866 (2000)
(quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct.
631, 145 L.Ed.2d 522 (2000)). Here, as in Garrett, it is undisputed that
the intentional abrogation requirement has been satisfied.*fn4 The
"grant of constitutional authority" for the abrogation assertedly comes
from Congress's power under § 5 of the Fourteenth Amendment*fn5 to
enforce the right to petition guaranteed by the First Amendment, as
applied to the States by § 1 of the Fourteenth Amendment.*fn6
After a struggle with a BYDC resident on June 6, 1997, plaintiff was
suspended without pay and, upon investigation, terminated, effective July
15, 1997. On November 11, 1997, following various grievance proceedings,
plaintiff was reinstated, but his request for limited duty status was
denied.*fn7 See Amended Complaint at ¶¶ 22-58. In November, 1997, he
filed an internal grievance with BYDC's affirmative action officer,
alleging that BYDC's disciplinary actions constituted disability
discrimination growing out of his previous injuries. In January, 1998, he
filed EEOC and PHRA charges of disability discrimination under Title I of
the ADA against BYDC. See Amended Complaint at ¶¶ 59-62. The amended
complaint also alleges that after plaintiff was injured by another
resident on March 31, 1998, BYDC retaliated against him for his
November, 1997 and January, 1998 complaints by arbitrarily terminating
his disability benefits, denying limited duty, and excluding him from the
premises. See Amended Complaint at ¶¶ 63-91.
II. First Amendment Right to Petition
III. Congressional Abrogation Power under § 5 of the Fourteenth
Given the pleading of facial violations of the retaliation provisions
of the ADA and the Rehabilitation Act — as well as a First
Amendment right to petition violation — the question becomes
whether Congress thereby has the power to remedy such Constitutional
violations. While Congress may secure Fourteenth Amendment rights by
"prohibiting a somewhat broader swath of conduct . . . [than is forbidden]
by the Amendment's text,"*fn17 § 5 legislation "reaching beyond the
scope of § 1's actual guarantees must exhibit `congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end.'" Garrett, 531 U.S. at 365, 121 S.Ct. at 963
(quoting City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157,
2164, 138 L.Ed.2d 624 (1997)). Plaintiff here, however, unlike Garrett,
has pleaded a claim arising directly within § 1's "actual
guarantees," so that a § 5 "congruence and proportionality" inquiry
is not required.*fn18
The Court so far has applied "congruence and proportionality" only to
so-called "prophylactic" legislation that goes beyond § 1's
guarantees.*fn19 Moreover, the original
"congruence and proportionality"
rationale suggests that it should be limited to such legislation. In City
of Boerne, this formulation was announced in order to preserve the
judiciary's role as final arbiter of the Constitution. See City of
Boerne, 521 U.S. at 519-24, 117 S.Ct. at 2163-66 ("The power to interpret
the Constitution in a case or controversy remains in the Judiciary."). In
this perspective, Congress must be deterred from using its § 5 power
to "decree the substance of the Fourteenth Amendment's restrictions,"
rather than to enforce those restrictions as delineated by the
Judiciary. Id. at 519, 117 S.Ct. at 2164. Where legislation simply
enforces judicially determined § 1 guarantees, no such restraint is
necessary. Here, given the First Amendment violations asserted in the
amended complaint, the ADA's and Rehabilitation Act's retaliation
provisions directly serve to enforce the "actual guarantees" of § 1.
Therefore, at least in this case, they need not be held up to the
"congruence and proportionality" prism.
AND NOW, this 20th day of February, 2002, defendant Pennsylvania
Department of Public Welfare's motion to dismiss the amended complaint is
ruled on as follows:
1. Motion to dismiss Count I — denied.
2. Motion to dismiss Count II ...