Fifth Circuit on the ADA, Parking Placards, and State Sovereign Immunity

The Fifth Circuit yesterday issued an odd opinion in Meyers v. Texas, an ADA Title II case challenging the imposition of a fee for handicapped parking placards. The plaintiffs had brought suit in state court, and the state removed to federal court. The Fifth Circuit held, following (but also arguably extending) the Supreme Court's decision in Lapides v. Bd. of Regents, 535 U.S. 613 (2002), that the state waived its sovereign immunity from suit by removing the case to federal court. The state had argued that this case was different from Lapides, because in this case the state claimed sovereign immunity from suit in both state and federal court. As a result, removal here could not be a strategic effort to move into a forum that, unlike the original forum, lacked jurisdiction. The Fifth Circuit rejected that argument and held that Lapides controlled. But the court also stated that the state might retain sovereign immunity against liability -- even though it had waived its sovereign immunity against suit -- and that the sovereign immunity against liability was a matter of state law to be determined on remand (even though the claim was a federal claim).

This case is at least in some tension with out-of-circuit precedent, so if the interlocutory posture of the case doesn't stand in the way, the issue might get further review.