United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss [Doc. No. 26],
filed pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff has filed
a response [Doc. No. 28], and Defendants have replied [Doc.
No. 29]. Thus, the Motion is fully briefed.
Johnny Reininger, Jr. is deaf. He resides in Oklahoma and
tracks the status of state legislative bills, particularly
ones that affect disabled individuals. Defendants State of
Oklahoma, Oklahoma State Senate, Oklahoma House of
Representatives, and their respective leaders - President Pro
Tempore Mike Shulz and Speaker Charles A. McCall - maintain
internet websites that show live feeds of legislative
hearings and proceedings. Plaintiff claims he does not have
meaningful access to this information because the audio
content of the online broadcasts is not captioned and he
cannot understand what is being said. Plaintiff has contacted
both legislative bodies about the lack of captioning and has
asked them to bring the websites into compliance with federal
disability discrimination laws. Plaintiff alleges that
despite an admission of noncompliance, captioning has not
been provided due to budgetary constraints. Defendants state
in their Motions that captioning would be cost prohibitive
and technologically difficult and, as an alternative, they
have offered to provide interpretive services if Plaintiff
gives advance notice that he wants to attend a proceeding.
brings suit claiming that Defendants have violated and are
violating Title II of the Americans with Disabilities Act
(ADA), 42 U.S.C. §12131 et seq., and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794, by
failing to provide captioning for internet broadcasts of the
Oklahoma Legislature's proceedings. Title II of the ADA
prohibits the exclusion of a qualified individual with a
disability from participation in the services, programs, or
activities of a public entity, and implementing regulations
require that a public entity “furnish appropriate
auxiliary aids and services where necessary to afford
individuals with disabilities, including . . . members of the
public, an equal opportunity to participate in, and enjoy the
benefits of, a service, program, or activity of a public
entity.” See 28 C.F.R. § 35.160(b)(1).
The Rehabilitation Act extends similar requirements to
programs that receive federal financial assistance. Plaintiff
alleges that as a result of Defendants' failure to
caption, he has been unable to access legislative information
that is available to hearing persons, and he has suffered
mental anguish and other nonpecuniary losses. Plaintiff seeks
a declaratory judgment, compensatory damages, and injunctive
relief, to include a mandatory injunction compelling
Defendants “to make accessible to individuals who are
deaf or hard of hearing all audio and video content on their
websites, including by displaying simultaneous
captioning.” See Compl. [Doc. No. 1] at 7
(Relief, ¶ e).
seek dismissal on grounds of sovereign immunity under the
Eleventh Amendment of the United States Constitution and
States' immunity from federal control under the Tenth
Amendment. Although Defendants do not designate their Motion
as one for partial dismissal, it is clear upon closer
inspection that Defendants do not challenge Plaintiff's
action in its entirety. Defendants state that while they do
not concede the Rehabilitation Act abrogates sovereign
immunity, they “believe this argument is best left for
summary judgment.” See Defs.' Mot. Dismiss
[Doc. No. 26] at 2, n.2. The Motion addresses the issues of
sovereign immunity and States' rights only as they
pertain to Plaintiff's ADA claim. See id. at 2
(“Defendants assert that they are immune from suit
under the ADA and further that application of the ADA in the
manner asserted by Plaintiff would be . . . impermissible
under the Tenth Amendment.”).
Defendants assert that the individuals sued in their official
capacities, President Pro Tempore Shulz and Speaker McCall,
enjoy sovereign immunity only from an ADA suit for money
damages. They admit the Tenth Circuit has authorized an
action for prospective injunctive relief against a state
official for a violation of the ADA under the Ex parte
Young doctrine. See Defs.' Mot.
Dismiss [Doc. No. 26] at 10 (citing Guttman v.
Khalsa, 669 F.3d 1101, 1127-28 (10th Cir. 2012)). Thus,
Defendants Shulz and McCall seek a dismissal based on
sovereign immunity only of Plaintiff's ADA claim for
damages. See Defs.' Mot. Dismiss [Doc. No. 26]
at 3, 10, 12; Defs.' Reply Br. [Doc. No. 29] at 5.
However, all other defendants - the State, the Senate, and
the House of Representatives - seek dismissal of the ADA
action in its entirety. See Defs.' Mot. Dismiss
[Doc. No. 26] at 3, 9, 12; Defs.' Reply Br. [Doc. No. 29]
the Tenth Amendment, Defendants do not contend the ADA is
unconstitutional as applied to them generally; they assert
only that the mandatory injunction Plaintiff seeks would
violate the Tenth Amendment. As framed by Defendants,
“[t]he issue presented for decision is whether Title II
of the ADA commandeers the Oklahoma Legislature if the Court
finds that [the legislature] must close caption its floor
sessions.” See Defs.' Mot. Dismiss [Doc.
No. 26] at 10; see also Defs.' Reply Br. [Doc.
No. 29] at 6 (“Because of the type of relief sought the
Tenth Amendment acts as a bar.”).
move for dismissal under Rule 12(b)(1) for lack of subject
matter jurisdiction. As agreed by all parties, there are two
types of challenges to subject matter jurisdiction: (1)
facial attacks on the sufficiency of the allegations
contained in the complaint; and (2) challenges to the actual
facts upon which subject matter jurisdiction is based.
See Holt v. United States, 46 F.3d 1000, 1002 (10th
Cir. 1995). Here, Defendants make a facial attack on the
sufficiency of the allegations contained in the Complaint.
Therefore, all well-pleaded factual allegations of the
Complaint are accepted as true. Id.; see also
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
Eleventh Amendment Immunity
Eleventh Amendment grants immunity to the States from
“any suit in law or equity, commenced or prosecuted . .
. by Citizens of another State” or by their own
citizens. U.S. Const. amend. XI; see Bd. of Trs. v.
Garrett, 531 U.S. 356, 363 (2001) (“The ultimate
guarantee of the Eleventh Amendment is that nonconsenting
States may not be sued by private individuals in federal
court.”). There are three exceptions:
First, a state may consent to suit in federal court. Second,
Congress may abrogate a state's sovereign immunity by
appropriate legislation when it acts under Section 5 of the
Fourteenth Amendment. Finally, under Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff
may bring suit against individual state officers acting in
their official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective
Levy v. Kansas Dep't of Soc. & Rehab.
Servs., 789 F.3d 1164, 1168-69 (10th Cir. 2015) (quoting
Muscogee (Creek) Nation v. Pruitt,669 F.3d 1159,
1166 (10th Cir. 2012)). In this case, Defendants have not
consented to Plaintiff's suit and, as discussed above,
they do not oppose an Ex parte Young action. Thus,
only the second ...