[PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 97-2855
                        ________________________

                    D. C. Docket No. 4:96cv168 MMP

CHARLES SEABORN,
ROBERT HARRIS,
                                                     Plaintiffs-Appellants,

                                    versus

STATE OF FLORIDA,
DEPARTMENT OF CORRECTIONS,

                                                      Defendants-Appellees.

                        ________________________

           Appeal from the United States District Court
               for the Northern District of Florida
                     _________________________
                          (June 16, 1998)



Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit
     Judge.




BLACK, Circuit Judge:

     Appellants Charles Seaborn and Robert Harris brought this action against the

State of Florida, Department of Corrections (Florida), alleging they were
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discriminated against in violation of the Americans with Disabilities Act of 1990, 42

U.S.C. §§ 12101-12213 (ADA). The district court granted Florida’s motion for

summary judgment and Appellants filed this appeal. Florida now asserts for the first

time that it is entitled to Eleventh Amendment sovereign immunity from Appellants’

ADA claims.

                                 I. BACKGROUND

      Appellants are African-American males who worked for Florida at the

Tallahassee Community Correctional Center (TCCC). Appellants have a skin

condition known as pseudofolliculitis barbae (PFB), which causes lesions to form on

the surface of their skin after shaving. Appellants allege that the appropriate treatment

for PFB is simply to refrain from shaving and, therefore, that they must wear beards

as a matter of medical necessity.

      TCCC has a “No Beard Policy” requiring male employees to be clean-shaven.

This policy includes medical exceptions under which TCCC permitted Appellants to

wear beards.    Appellants allege they nevertheless were subjected to de facto

workplace discrimination and were denied promotions because they wore beards.

Appellants brought claims against Florida pursuant to the ADA, asserting that PFB

is a disability. The district court granted Florida’s motion for summary judgment,

concluding that Appellants do not have a disability within the meaning of the ADA


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because PFB does not substantially limit Appellants’ ability to work.1 This appeal

followed.

                                        II. DISCUSSION

       Florida asserts for the first time on appeal that it is entitled to Eleventh

Amendment immunity from Appellants’ ADA claims. An assertion of Eleventh

Amendment immunity essentially challenges a court’s subject matter jurisdiction:

“The Eleventh Amendment restricts the judicial power under Article III, and Article

I cannot be used to circumvent the constitutional limitations placed on federal

jurisdiction.” Seminole Tribe v. Florida, 

, 72-73, 

, 1131-

32 (1996). Eleventh Amendment immunity therefore may be asserted for the first

time on appeal. Smith v. Avino, 

, 107 (11th Cir. 1996) (citations omitted),

abrogated on other grounds by Steel Co. v. Citizens for a Better Env’t, __ U.S. __,

(1998). Furthermore, an assertion of Eleventh Amendment immunity




       1
          Appellants also brought claims alleging they were discriminated against on the basis of race
in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17. Florida filed a motion for summary
judgment on all claims. In its order dismissing the ADA claims, the district court reserved judgment
on the Title VII claims and instructed Appellants’ counsel to clarify the theory of Title VII liability
and to specify the record evidence demonstrating a genuine issue of material fact. After further
briefing, the district court dismissed the Title VII claims, ruling that Appellants had not stated a
prima facie case of discrimination under any theory of Title VII liability. Appellants appeal the
district court’s order dismissing the Title VII claims. We affirm the dismissal of the Title VII claims
on the basis of the well-reasoned district court opinion.

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must be resolved before a court may address the merits of the underlying claim(s).

See Steel, __ U.S. at __, 118 S. Ct. at 1012-16.2

       Florida is entitled to Eleventh Amendment immunity unless Congress has

abrogated that immunity. “In order to determine whether Congress has abrogated the

States’ sovereign immunity, we ask two questions: first, whether Congress has

unequivocally expressed its intent to abrogate the immunity; and second, whether

Congress has acted pursuant to a valid exercise of power.” Seminole 

, 116 S. Ct. at 1123. Congress has unequivocally expressed its intent for the

ADA to abrogate sovereign immunity. 42 U.S.C. §12202. Therefore, our analysis

will focus on the second question set forth in Seminole Tribe.

       In Kimel v. State Bd. of Regents, 

, 1433 (11th Cir. 1998), a panel

of this Court held that the ADA is a valid exercise of the Enforcement Clause of the

Fourteenth Amendment and concluded that the States do not have Eleventh

       2
         Despite the jurisdictional nature of the Eleventh Amendment, prior to Steel this Court held
that an assertion of sovereign immunity could be ignored where the resolution of the merits of a
claim would favor the party asserting sovereign immunity:
        Though it is the usual practice to resolve subject matter jurisdiction issues before
        reaching the merits, it is permissible for the Court to bypass jurisdictional questions
        and decide the case on the merits when the jurisdictional issue is difficult, the law is
        not well-established, and a decision on the merits favors the party who has raised the
        jurisdictional bar.

. This practice was referred to as “hypothetical jurisdiction,” whereby the court
hypothetically assumed jurisdiction over a case and then dismissed the case on the merits. The
Supreme Court squarely rejected the doctrine of hypothetical jurisdiction in Steel and instructed that
a challenge to Article III subject matter jurisdiction must be resolved before a court may address the
merits of the underlying claim in any manner. Steel, __ U.S. at __, 118 S. Ct. at 1012-16.

                                                  4
Amendment immunity from claims brought under the ADA. 

bound by the

decision of the Kimel panel unless that decision is overruled by the Supreme Court or

by this Court sitting en banc. United States v. Woodward, 

, 1258 (11th

Cir. 1991).

      Having resolved the Eleventh Amendment issue against Florida, we may now

address the merits of Appellants’ ADA claims.         We affirm the dismissal of

Appellants’ ADA claims on the basis of the well-reasoned district court opinion.

      AFFIRMED.




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