Laro v. State of New Hampshire

• Decision Date: 07 December 2000
• Docket Number: No. 00-1581,00-1581
• Citation: 259 F.3d 1
• Parties: (1st Cir. 2001) STEPHEN LARO Plaintiff, Appellant, v. STATE OF NEW HAMPSHIRE Defendant, Appellee. Heard:
• Court: U.S. Court of Appeals — First Circuit

Page 1

259 F.3d 1 (1st Cir. 2001)

STEPHEN LARO Plaintiff, Appellant, v. STATE OF NEW HAMPSHIRE Defendant, Appellee.

No. 00-1581

United States Court of Appeals For the First Circuit

Heard: December 7, 2000

Decided: August 6, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Copyrighted Material Omitted] Peter J. Smith, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Paul M. Gagnon, U.S. Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, were on brief, for intervenor United States and appellant.

Andrew B. Livernois, with whom Philip T. McLaughlin, New Hampshire Attorney General, was on brief, for appellee.

Before Lynch, Circuit Judge, Stahl, Senior Circuit Judge, and Lipez, Circuit Judge.

LYNCH, Circuit Judge.

This case requires us to address the scope of congressional power under Section 5 of the Fourteenth Amendment to abrogate the immunity of the states from suit in federal court which the states would otherwise enjoy under the Eleventh Amendment and Supreme Court precedent. At issue is whether the creation of a private cause of action against a state for money damages under the personal medical leave provision of the Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D), validly abrogates that immunity as an exercise of Congress's Section 5 powers.

Following the analytic framework suggested by two recent Supreme Court decisions, Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001), we hold that the FMLA's personal medical leave provision, 29 U.S.C. § 2612(a)(1)(D) (affording leave for serious personal health conditions), insofar as it authorizes private suits against states, does not validly abrogate the states' immunity.¹ Every circuit court which has addressed the personal medical leave provision of the FMLA in this context has held that that provision does not abrogate the immunity of the state as employer in the face of the Eleventh Amendment. Our holding is narrow: the present legislative record does not demonstrate that the personal medical leave provision of the FMLA is an appropriate response necessary to remedy or prevent unconstitutional gender discrimination practiced by the states as employers.

I.

Stephen Laro was employed by the State of New Hampshire as a computer specialist for the New Hampshire Retirement System. In early 1998, he had heart bypass surgery. Because of his medical condition, following his surgery he requested and received leave under the FMLA, which leave began on March 6, 1998. Laro's physician provided the State with a certification which said that Laro's condition required him to be out of work for at least eight weeks, or until at least May 3, 1998. Apparently his employer understood that to mean he requested leave only until that day. When he did not return to work as of May 5, 1998, his employer inquired, and Laro explained that his physician had not yet cleared him to return to work. On May 8, 1998, the State wrote to Laro, informing him that his FMLA leave would expire as of May 29, 1998. Laro replied that he would not need any more time than that, and on May 18, 1998, he provided his employer with a letter from his physician authorizing his immediate return to work. Laro's employer then told him that before returning to work he had to meet with his supervisors, and asked him to schedule an appointment. At this time, Laro expected to return to work on Thursday, May 21, before the expiration of the twelve week FMLA period. Instead, he was given a termination letter, dated May 21, 1998, and setting an effective termination date of May 29, 1998. The termination letter stated that Laro had exhausted his accumulated leave balances and that he was unable to meet the New Hampshire Retirement System's attendance requirements. Other than that statement there is no explanation in the record for New Hampshire's about-face on Laro's ability to return to work.

Laro sued for monetary damages in federal court, claiming that the state had violated 29 U.S.C. § 2615 by terminating his employment before the expiration of the twelve week period of unpaid leave guaranteed under the FMLA. The state moved to dismiss, asserting its immunity under the Eleventh Amendment. The district court agreed, and dismissed the action. Laro now appeals, joined by the United States as intervenor.

II.

The Eleventh Amendment provides that "[t]he 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. Though limited by its express terms, the Amendment has been construed broadly by the Supreme Court, such that its "ultimate guarantee" is "that nonconsenting States may not be sued by private individuals in federal court." Garrett, 531 U.S. at ---, 121 S. Ct. at 962.

Congress may abrogate this Eleventh Amendment immunity when it both "unequivocally intends to do so" and "act[s] pursuant to a valid grant of constitutional authority." Id. (citing Kimel, 528 U.S. at 73).² Here, the State properly concedes that Congress did intend to abrogate the states' immunity. See 29 U.S.C. § 2617(a)(2) (extending private right of action for damages to employees against "any employer (including a public agency)"); 29 U.S.C. § 2611(4)(A)(iii) (defining "employer" to include any "public agency" and cross-referencing 29 U.S.C. § 203(x) (defining "public agency" to include "the government of a State or political subdivision thereof")). The question, then, is whether Congress, in subjecting the states to suit in federal court for money damages under the personal medical leave provision of the FMLA, acted appropriately pursuant to a valid grant of constitutional authority.

The Supreme Court has held that Congress may not properly base its abrogation of Eleventh Amendment immunity upon the powers enumerated in Article I. Garrett, 531 U.S. at ---, 121 S. Ct. at 962; Kimel, 528 U.S. at 79; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996). Where Congress acts pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment, however, it may subject nonconsenting states to suit in federal court. Garrett, 531 U.S. at ---, 121 S. Ct. at 962 ("[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.") (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)); Seminole Tribe, 517 U.S. at 59 ("[T]hrough the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore [ ] § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment."). That is so because the Fourteenth Amendment expressly empowers Congress to enforce its provisions against the states. See Seminole Tribe, 517 U.S. at 59 ("[T]he Fourteenth Amendment, by expanding federal power at the expense of state autonomy, [ ] fundamentally altered the balance of state and federal power struck by the Constitution."); Ex parte Virginia, 100 U.S. 339, 346 (1879) ("The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action . . . . Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact.").

Section 1 of the Fourteenth Amendment provides, in relevant part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV. Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in Section 1 by enacting "appropriate legislation."³ Id. This provision embodies an affirmative grant of power to Congress. See City of Boerne v. Flores, 521 U.S. 507, 517 (1997) ("All must acknowledge that § 5 is 'a positive grant of legislative power' to Congress.") (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)).

Section 5 of the Fourteenth Amendment, then, affords Congress a broad remedial and prophylactic power to enact legislation restricting state action, so long as the legislation reflects a rational means, under the standard of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), to realize the end of enforcing the Fourteenth Amendment's substantive prohibitions. See City of Boerne, 521 U.S. at 517-18 ("Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.") (quoting Ex parte Virginia, 100 U.S. at 345-46); Katzenbach v. Morgan, 384 U.S. at 650 ("By including § 5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18."); id. at 651 ("[T]he McCulloch v. Maryland standard is the measure of what constitutes 'appropriate legislation' under § 5 of the Fourteenth Amendment."); see also South Carolina v....