Humenansky v. Regents of University of Minnesota

• Decision Date: 03 November 1998
• Docket Number: No. 97-2302,97-2302
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 679, 128 Ed. Law Rep. 978 John HUMENANSKY, Plaintiff--Appellant, v. REGENTS OF THE UNIVERSITY OF MINNESOTA, Defendant--Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 822

152 F.3d 822

77 Fair Empl.Prac.Cas. (BNA) 679, 128 Ed. Law

Rep. 978

John HUMENANSKY, Plaintiff--Appellant, v. REGENTS OF THE UNIVERSITY OF MINNESOTA, Defendant--Appellee.

No. 97-2302.

United States Court of Appeals Eighth Circuit.

Submitted March 9, 1998.

Decided Aug. 11, 1998.

Rehearing and Suggestions for Rehearing En Banc Denied Nov.

3, 1998. ^*

Clair Edward Schaff, Minneapolis, MN, argued, for Appellant.

Mark B. Rotenberg, Minneapolis, MN, argued (Tracy M. Smith, on the brief), for Appellee.

Seth M. Galanter, Washington, DC, argued (Isabelle Katz Pinzler and Jessica Dunsay Silver, on the brief), for Intervenor.

Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, ^* District Judge.

LOKEN, Circuit Judge.

The Eleventh Amendment bars federal court jurisdiction over a suit between an unconsenting State and one of its citizens unless Congress has effectively abrogated the State's Eleventh Amendment immunity. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The University of Minnesota is "an instrumentality of the state" entitled to invoke Minnesota's Eleventh Amendment immunity. See Treleven v. University of Minnesota, 73 F.3d 816, 818-19 (8th Cir.1996). John Humenansky brought this action in federal court, alleging that the University violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., when it laid him off in 1994. The district court ¹ dismissed, concluding that the suit is barred by the Eleventh Amendment because Congress neither intended to abrogate Eleventh Amendment immunity nor acted under § 5 of the Fourteenth Amendment in enacting 1974 amendments that extended the ADEA to cover public employers. Humenansky appeals, supported by the United States as intervenor. We affirm.

To determine whether a federal statute abrogates Eleventh Amendment immunity, we ask "first, whether Congress ... unequivocally expressed its intent to abrogate the immunity, and second, whether Congress ... acted pursuant to a valid exercise of power." Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996). The practical import of this inquiry is narrow, affecting only whether States may be sued in federal court for ADEA violations. We review these questions of law de novo.

A. Congressional Intent To Abrogate. The power to abrogate Eleventh Amendment immunity "implicates the fundamental constitutional balance between the Federal Government and the States." Therefore, "Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). The statute need not explicitly reference sovereign immunity or the Eleventh Amendment. See Dellmuth v. Muth, 491 U.S. 223, 233, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (Scalia, J., concurring). But its text must contain "unmistakably clear" language that States may be sued in federal court. A general authorization for suit in federal court is not enough. See Seminole Tribe, 116 S.Ct. at 1123-24.

The ADEA prohibits age discrimination in employment. The statute has its own recitation of prohibited conduct and covered employers. See 29 U.S.C. §§ 623, 630(b). But it contains a hybrid enforcement mechanism: 29 U.S.C. § 626(c) authorizes aggrieved persons to sue "in any court of competent jurisdiction" for relief under the ADEA, while 29 U.S.C. § 626(b) provides that the ADEA "shall be enforced in accordance with the powers, remedies, and procedures provided in" the Fair Labor Standards Act (FLSA). Among the cross-referenced FLSA enforcement statutes is 29 U.S.C. § 216(b), which authorizes aggrieved employees to sue for damages and liquidated damages "in any Federal or State court of competent jurisdiction." See generally Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

Initially, both the FLSA and the ADEA excluded States and their political subdivisions from the statutory definitions of covered employers. In 1966, Congress amended the FLSA definition of employer to include certain state and local employees. The Supreme Court held in Employees of the Dept. of Public Health & Welfare v. Missouri, 411 U.S. 279, 285, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), that this amendment did not evidence sufficiently clear congressional intent to abrogate Eleventh Amendment immunity because Congress did not correspondingly amend the enforcement provision, 29 U.S.C. § 216(b):

[W]e have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts.... It would ... be surprising ... to infer that Congress deprived Missouri of her constitutional immunity without changing the [provision] under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away.

Congress responded in 1974 by amending § 216(b) to permit actions "against any employer (including a public agency) in any Federal or State court. " Pub.L. No. 93-259, § 6, 88 Stat. 61 (emphasis added). The amendment was intended to overturn the Eleventh Amendment ruling in Employees. See H.R.REP. NO. 93-259, reprinted in 1974 U.S.C.C.A.N. 2811, 2853. Though the intent-to-abrogate inquiry focuses on statutory text, not legislative history, we agree with numerous other circuits that the 1974 amendments to § 216(b) reflect an unmistakably clear textual intent to abrogate Eleventh Amendment immunity from FLSA suits in federal court. See, e.g., Reich v. State of New York, 3 F.3d 581, 590-91 (2d Cir.1993); Hale v. State of Arizona, 993 F.2d 1387, 1391-92 (9th Cir.1993); cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 449 n. 2, 452, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) ("congressional authorization to sue the State ... clearly present" when Title VII amended to allow suits against "governments [and] governmental agencies").

At the same time Congress amended the FLSA's § 216(b), it expanded the ADEA's definition of "employer" to include "a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State." Pub.L. No. 93-259, § 28, 88 Stat. 74, codified at 29 U.S.C. § 630(b)(2). Because § 626(b) of the ADEA incorporates § 216(b), the 1974 amendments amended part of the ADEA enforcement mechanism as well as the definition of employer. But left unamended was 29 U.S.C. § 626(c)--it still contains only a general authorization to enforce the ADEA "in any court of competent jurisdiction." Thus, we face a conundrum. If we look only at § 626(c), the 1974 ADEA amendments are just like the 1966 FLSA amendments at issue in Employees--Congress now covered public employers but did not expressly allow them to be sued in federal court. On that basis, we would conclude no intent to abrogate, following the reasoning in Employees as reinforced by the Court's later decisions in Atascadero and Dellmuth. On the other hand, if we look at the ADEA's enforcement scheme from the perspective of its cross-reference to the FLSA, Congress cured the abrogation deficiency found in Employees by amending § 216(b) at the same time § 630(b)(2) was amended to include States and other public employers.

Quite properly, the United States as intervenor emphasizes the 1974 amendment to § 216(b) in arguing clear intent to abrogate, while the University counters by emphasizing the lack of an amendment to § 626(c). Both are weighty arguments pointing in diametrically opposite directions. Congress in 1974 focused on the Employees decision, intended to legislatively overrule it as to the FLSA, and amended the ADEA to cover States and their political subdivisions. If Congress intended to abrogate Eleventh Amendment immunity for the ADEA as well as the FLSA, and recognized that Employees required that intent to abrogate be reflected by amending the enforcement provisions, why not amend § 626(c), the ADEA provision that most directly addresses the question of federal court jurisdiction? There are only two rational answers to that question--no intent to abrogate for the ADEA, or legislative oversight, which is not a proper basis for finding "unmistakably clear" intent to abrogate in the statute's text. See Dellmuth, 491 U.S. at 232, 109 S.Ct. 2397 ("permissible inference" of an intent to abrogate is not enough). Thus, we conclude the district court correctly held that the ADEA's text does not reflect an unmistakably clear intent to abrogate Eleventh Amendment immunity. We disagree with other circuits that have found an intent to abrogate without analyzing this aspect of the 1974 amendments. ²

B. Congressional power to abrogate. Even if the ADEA's text contained a sufficiently clear expression of intent to abrogate, we conclude that Congress lacked the power to abrogate Eleventh Amendment immunity. The Commerce Clause, part of Article I of the Constitution, cannot be used to abrogate the Eleventh Amendment's limitation on the Article III jurisdiction of the federal courts. See Seminole Tribe, 116 S.Ct. at 1131-32, overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). However, § 5 of the Fourteenth Amendment is a valid basis for abrogating Eleventh Amendment immunity because that Amendment was intended to "fundamentally alter[ ] the balance of state and federal power struck by the Constitution." Id. at 59, 116 S.Ct. at 1125, citing Fitzpatrick, 427 U.S. at 452-56, 96 S.Ct. 2666. Section 5 "is a positive grant of legislative power" to enforce § 1 of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, ----, 117 S.Ct. 2157, 2163, 138 L.Ed.2d 624 (1997), quoting Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Those sections provide in relevant part:

Section 1.... No State shall make or enforce any...