139 F.3d 1426 (11th Cir. 1998), 96-2788, Kimel v. State Bd. of Regents

Docket Nº96-2788, 96-3773 and 96-6947.
Citation139 F.3d 1426
Party NameJ. Daniel KIMEL, Jr., Ralph C. Dougherty, Burton H. Altman, Robert W. Beard, Valdall K. Brock, et al., Plaintiffs-Appellees, Doris C. Baker, et al., Plaintiffs, v. STATE OF FLORIDA BOARD OF REGENTS, Defendant-Appellant. Wellington N. DICKSON, a.k.a. Duke, Plaintiff-Appellee, v. FLORIDA DEPARTMENT OF CORRECTIONS, Jackson County, Defendant-Appellant,
Case DateApril 30, 1998
CourtUnited States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1426

139 F.3d 1426 (11th Cir. 1998)

J. Daniel KIMEL, Jr., Ralph C. Dougherty, Burton H. Altman,

Robert W. Beard, Valdall K. Brock, et al.,

Plaintiffs-Appellees,

Doris C. Baker, et al., Plaintiffs,

v.

STATE OF FLORIDA BOARD OF REGENTS, Defendant-Appellant.

Wellington N. DICKSON, a.k.a. Duke, Plaintiff-Appellee,

v.

FLORIDA DEPARTMENT OF CORRECTIONS, Jackson County, Defendant-Appellant,

Jackson Correctional Institution, Jim Folsom, and James

Edward Childs, a.k.a. J.E. Childs, Major, Defendants.

Roderick MACPHERSON, Marvin Narz, Plaintiffs-Appellants,

v.

UNIVERSITY OF MONTEVALLO, Defendant-Appellee,

National Employment Lawyers Association, Amicus,

United States of America, Intervenor-Appellant.

Nos. 96-2788, 96-3773 and 96-6947.

United States Court of Appeals, Eleventh Circuit

April 30, 1998

Page 1427

[Copyrighted Material Omitted]

Page 1428

Peter S. Fleitman, Dept. of Legal Affairs, Wendy S. Morris, Florida Bd. of Regents, Office of Human Resources, Tallahassee, FL, for State of Florida Bd. of Regents.

Robert H. Chanin, Jeremiah A. Collins, Jonathan Hacker, Bredhoff & Kaiser, Washington, DC, for Plaintiffs-Appellees in 96-2788.

Seth M. Galanter, Civ. Rights Div., U.S. Dept. of Justice, Washington, DC, for United States.

Robert Butterworth, Atty. Gen., Lynn G. Franklin and Amelia L. Beisner, Asst. Attys. Gen., Tallahassee, FL, for Florida Dept. of Corrections.

Gerald J. Houlihan, Houlihan & Partners, P.A., Miami, FL, for Dickson.

David R. Arendall, Birmingham, AL, for Plaintiffs-Appellants in 96-6947.

Douglas A. Hedin, Elizabeth A. Glidden, Minneapolis, MN, for amicus curiae National Employment Lawyers Ass'n.

William F. Gardner, Cabaniss, Johnston & Gardner, Birmingham AL, for University of Montevallo.

Appeals from the United States District Court for the Northern District of Florida.

Appeal from the United States District Court for the Northern District of Alabama.

Before HATCHETT, Chief Judge, and EDMONDSON and COX, Circuit Judges.

EDMONDSON, Circuit Judge: 1

Three cases presenting the same or similar issues of Eleventh Amendment immunity were consolidated and are addressed in this appeal. In all three cases, the States, or their agencies, submitted motions to dismiss based on Eleventh Amendment immunity. The issues in this appeal are whether Congress

Page 1429

abrogated States' Eleventh Amendment immunity for suits under the Age Discrimination in Employment Act ("ADEA") and under the Americans with Disabilities Act ("ADA"). 2

Two district courts, the Northern District of Florida, Tallahassee Division, in State of Florida, Board of Regents v. Kimel ("Kimel ") and the Northern District of Florida, Panama City Division, in Florida Department of Corrections v. Dickson ("Dickson "), held that Congress effectively abrogated States' sovereign immunity with its enactment of the ADEA (and for Dickson the ADA) and denied the motions to dismiss. But, the Northern District of Alabama in MacPherson, Narz v. University of Montevallo ("MacPherson ") granted the State's motion to dismiss on Eleventh Amendment grounds. We agree with the Northern District of Alabama that suits by private parties against States in federal court for ADEA violations are prohibited by the Eleventh Amendment.

The cases were appealed for us to decide whether Congress abrogated sovereign immunity when it enacted the relevant statutes. 3 Because this appeal presents only questions of law, not dependent upon factual determinations, the facts of each Plaintiff's claim will not be discussed.

Discussion

A district court's order denying or granting a motion to dismiss a complaint against a State based on the Eleventh Amendment's grant of sovereign immunity is reviewed by this court de novo. See Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1021 (11th Cir.1994), aff'd, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).

The Eleventh Amendment states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. This provision not only prohibits suits against States in federal court by citizens of other States, but also prohibits suits brought against a State in federal court by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). 4

In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court recently considered the issue of when Congress can properly abrogate States' Eleventh Amendment immunity. The Court's decision in Seminole overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), which held that acts taken by Congress pursuant to the Commerce Clause could, if sufficiently clear, abrogate Eleventh Amendment immunity. In Seminole, the Court specifically held that Congress had no authority to abrogate State sovereign immunity under the Eleventh Amendment when Congress acted pursuant to the Commerce Clause; the power to abrogate only exists under Section 5 of the Fourteenth Amendment. 5 In addition, the Court set out precisely what Congress must do to abrogate the States' immunity.

Page 1430

Two requirements must be satisfied before Eleventh Amendment immunity can be successfully abrogated by Congress. Seminole, 517 U.S. at 54, 116 S.Ct. at 1123. First, Congress must have intended to abrogate that immunity by providing "a clear legislative statement" of its intent--"making its intention unmistakably clear in the language of the statute." 6 Id. (citing Blatchford v. Native Village of Noatak and Circle Village, 111 S.Ct. 2578, 2584 [1991], and Dellmuth v. Muth, 491 U.S. 223, 224-25, 109 S.Ct. 2397, 2399-2400 [1989] ). Second, Congress must have attempted to abrogate this immunity under proper constitutional authority. In other words, Congress must have enacted the statute at issue using its Fourteenth Amendment, Section 5, enforcement powers. See Seminole, 517 U.S. at 62-63, 116 S.Ct. at 1127-28. 7

I. Age Discrimination in Employment Act of 1967

Although I believe good reason exists to doubt that the ADEA was (or could have been properly) enacted pursuant to the Fourteenth Amendment, I will not decide that question today; 8 questions of constitutional power should be decided only as a last resort. Instead, I focus on the ADEA's words and rest my decision on the lack of unmistakably clear legislative intent.

In searching the ADEA for an unequivocal statement of intent to abrogate, courts look only to the language of the statute itself. Dellmuth, 491 U.S. at 228, 109 S.Ct. at 2401 ("[E]vidence of congressional intent must be both unequivocal and textual ... [l]egislative history generally will be irrelevant" because if the intent is clear in the language of the statute, "recourse to legislative history will be unnecessary.") (emphasis added). A court's guess about Congress's political will and subjective intentions--past, present, or future--is without consequence; only the statute and its language are to be considered. As directed by the Supreme Court, I do not go beyond the text of the ADEA in deciding whether it contains the requisite, unmistakably clear statement of intent to abrogate. Id.

This requirement--that the intent to abrogate be found in an unmistakably clear statement in the language of the statute--necessitates a high level of clarity by Congress. But, as the Supreme Court has observed, such a requirement of Congress is not too high when considering the important interests protected by the Eleventh Amendment. The Eleventh Amendment recognizes that States, as a matter of constitutional law, are special entities--still possessing attributes of sovereignty. The Amendment strikes a balance between the federal government and the States. To alter that balance, Congress must be unmistakably clear in its intent. See Dellmuth v. Muth, 491 U.S. at 226, 109 S.Ct. at 2400.

No unequivocal expression of an intent to abrogate immunity is unmistakably clear in

Page 1431

the ADEA. No reference to the Eleventh Amendment or to States' sovereign immunity is included. Nor is there, in one place, a plain, declaratory statement that States can be sued by individuals in federal court. To me, an intent on the part of Congress to abrogate the States' constitutional right to immunity is not sufficiently clear to be effective under Eleventh Amendment jurisprudence. 9

In one section, 29 U.S.C. § 630, the ADEA defines employers to include States. In a different section, 29 U.S.C. § 626(b), which never mentions employers much less mentions States as defendants, the ADEA separately provides for enforcement by means of suits for legal or equitable relief in courts of competent jurisdiction. This statutory structure does not provide the clarity needed to abrogate States' constitutional right to sovereign immunity. For abrogation to be unmistakably clear, it should not first be necessary to fit together various sections of the statute to create an expression from which one might infer an intent to abrogate. Although we make no definite rule about it, the need to construe one section with another, by its very nature, hints that no unmistakable or unequivocal declaration is present. More important, when we do construe the various ADEA sections together, abrogation never becomes "as clear as is the summer's sun." 10

"A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." See Seminole, 517 U.S. at 54, 116 S.Ct. at 1123 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244, 105 S.Ct. 3142, 3149, 87 L.Ed.2d 171 (1985)). "[T]hat Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated...

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82 practice notes
  • 19 F.Supp.2d 816 (S.D.Ohio 1998), C-1-96-764, Thrope v. State of Ohio
    • United States
    • Federal Cases United States District Courts 6th Circuit Southern District of Ohio
    • August 28, 1998
    ...115 F.3d 481, 487 (7th Cir. 1997); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997); Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998). In addition to the appellate courts cited above, several District Courts, including the Southern District of Ohio, have held that C......
  • 62 F.Supp.2d 780 (E.D.N.Y. 1999), 98-CV-488, Manzi v. DiCarlo
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • April 6, 1999
    ...The Supreme Court has recently agreed to resolve the existing conflict among the Circuits on this issue. Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir.1998), cert. granted, Kimel v. Florida Bd. of Regents, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999) and United States v. Fl......
  • 150 F.Supp.2d 1118 (D.Colo. 2001), Civ. A. 99-B-1120, Neiberger v. Hawkins
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • July 9, 2001
    ...dismissal of Plaintiffs' ADA claim, pending issuance of a ruling from the United States Supreme Court in Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted by Kimel v. Florida Bd. of Regents, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999) and United States v.......
  • 228 B.R. 439 (D.S.D. 1998), 97-4147, In re Doiel
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • September 30, 1998
    ...761 (7th Cir.1998) (ADEA is proper exercise of the 14th A. enforcement authority); but see Kimel v. State of Florida Board of Regents, 139 F.3d 1426 (11th Cir.1998) (no unequivocal expression of legislative intent to abrogate States' sovereign immunity in the ADEA; ADA was properly enacted ......
  • Request a trial to view additional results
80 cases
  • 19 F.Supp.2d 816 (S.D.Ohio 1998), C-1-96-764, Thrope v. State of Ohio
    • United States
    • Federal Cases United States District Courts 6th Circuit Southern District of Ohio
    • August 28, 1998
    ...115 F.3d 481, 487 (7th Cir. 1997); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997); Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998). In addition to the appellate courts cited above, several District Courts, including the Southern District of Ohio, have held that C......
  • 62 F.Supp.2d 780 (E.D.N.Y. 1999), 98-CV-488, Manzi v. DiCarlo
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • April 6, 1999
    ...The Supreme Court has recently agreed to resolve the existing conflict among the Circuits on this issue. Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir.1998), cert. granted, Kimel v. Florida Bd. of Regents, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999) and United States v. Fl......
  • 150 F.Supp.2d 1118 (D.Colo. 2001), Civ. A. 99-B-1120, Neiberger v. Hawkins
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • July 9, 2001
    ...dismissal of Plaintiffs' ADA claim, pending issuance of a ruling from the United States Supreme Court in Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted by Kimel v. Florida Bd. of Regents, 525 U.S. 1121, 119 S.Ct. 901, 142 L.Ed.2d 901 (1999) and United States v.......
  • 228 B.R. 439 (D.S.D. 1998), 97-4147, In re Doiel
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • September 30, 1998
    ...761 (7th Cir.1998) (ADEA is proper exercise of the 14th A. enforcement authority); but see Kimel v. State of Florida Board of Regents, 139 F.3d 1426 (11th Cir.1998) (no unequivocal expression of legislative intent to abrogate States' sovereign immunity in the ADEA; ADA was properly enacted ......
  • Request a trial to view additional results
2 books & journal articles
  • The Alden Trilogy: praise and protest.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 23 Nbr. 2, March 2000
    • March 22, 2000
    ...banc) (evenly divided vote of the court affirming Congress's power under Section 5 to enact the ADA); Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998) (2-1 opinion), affd. on other grounds, 120 S. Ct. 631 (2000); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998) (2-1 opini......
  • Disability harassment in the public schools.
    • United States
    • William and Mary Law Review Vol. 43 Nbr. 3, February 2002
    • February 1, 2002
    ...other half of the Kimel case, in which the employee sued under the ADA for the same conduct that was the basis of the ADEA claim. Kimel, 139 F.3d 1426, 1433 (11th Cir. 1998), aff'd, 528 U.S. 62 (2000). (363.) Garrett, 193 F.3d at 1218. (364.) Id. at 1218-19. (365.) Garrett, 531 U.S. 356. (3......