600 F.2d 1070 (5th Cir. 1979), 77-1846, Peel v. Florida Dept. of Transp.

Docket Nº:77-1846.
Citation:600 F.2d 1070
Party Name:Frederick D. PEEL, Plaintiff-Appellee, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Tom B. Webb, Jr., as Secretary, Defendants-Appellants.
Case Date:August 13, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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600 F.2d 1070 (5th Cir. 1979)

Frederick D. PEEL, Plaintiff-Appellee,



Secretary, Defendants-Appellants.

No. 77-1846.

United States Court of Appeals, Fifth Circuit

August 13, 1979

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George L. Waas, Gen. Counsel, State of Florida, H. Reynolds Sampson, John J. Rimes, III, Dept. of Transp., Tallahassee, Fla., for defendants-appellants.

Donald S. Modesitt, Asst. U. S. Atty., N. D. Fla., Tallahassee, Fla., William H. Berger, U. S. Dept. of Labor, Atlanta, Ga., Leonard Schaitman, Atty., Appellate Section Civil, Div. Dept. of Justice, Washington, D. C., Bobbye D. Spears, Regional Sol., Dept. of Labor, Atlanta, Ga., for plaintiff-appellee.

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

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM, [*] District Judge.

TJOFLAT, Circuit Judge:

This case requires us to decide whether the tenth amendment 1 or the eleventh amendment 2 prevents a federal court from ordering a state agency to reinstate a former employee under the Veterans' Reemployment Rights Act (the Act), 38 U.S.C. §§ 2021-2026 (1976), 3 passed pursuant to the war power of Congress. 4 The district

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court granted plaintiff Frederick D. Peel's motion for summary judgment, ruling that the defendants, the Florida Department of Transportation (DOT) and its Secretary, had violated the Act by terminating Peel's employment; the court ordered that Peel be reinstated and compensated for lost wages and benefits. Peel v. Florida Department of Transportation, 443 F.Supp. 451 (N.D.Fla.1977). The DOT and the Secretary contend that Peel's suit is barred by the tenth and eleventh amendments. We reject their contentions and affirm.


Peel was a permanent full-time employee of the DOT for more than three and one-half years. The DOT was and continues to be an agency of the state of Florida. Prior to September 5, 1975, Peel had used for reserve military duty fourteen of the seventeen days allotted annually for military leave under Florida law. 5 On that date, Peel requested military leave after receiving orders for full time training duty with the national guard for the period September 9, 1975, to November 6, 1975. The request was denied, but Peel nevertheless reported as ordered for training duty.

By letter dated September 16, 1975, the DOT advised Peel that he had been discharged, since he was deemed to have abandoned his position under Florida Department of Administration Rule 22A-7.10(B) by virtue of his absence for three consecutive workdays without authorized leave. On November 7, 1975, after completing his training with the national guard, Peel applied for reemployment. The DOT refused and has continued to refuse reemployment.

Peel instituted this action on October 8, 1976, to secure reemployment and to receive lost wages and benefits. The defendants moved to dismiss the complaint on various grounds, including that the action was barred by the tenth and eleventh amendments. The motion was considered in conjunction with the parties' reciprocal motions for summary judgment made on a joint stipulation of facts and was denied when the district court entered summary judgment for Peel. This appeal followed, and a stay of the judgment was granted. Only the tenth and eleventh amendment issues are before this court.


In 1974, Congress extended veterans' reemployment rights to employees of state and local governments and authorized enforcement actions against the states and their political subdivisions. Act of Dec. 3, 1974, Pub.L. No. 93-508, 88 Stat. 1594 (codified at 38 U.S.C. §§ 2021-26 (1976)). By doing this, Congress provided state and local government employees with reemployment rights that previously had been given to other veterans who had left their civilian jobs to serve in the armed forces, including the national guard. 6 Although states are free to establish additional rights and protections supplemental to those the Act provides,

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38 U.S.C. § 2021(a) (1976), they are not free to restrict the reemployment rights that the Act has created.

The district court found that the constitutional basis for the Act flowed from Congress's war power. In addition, the court ruled that the Act applied to Peel and that the termination of his employment and the denial of reemployment were in violation of the Act. 443 F.Supp. at 454-55. Relying upon the supremacy clause, U.S.Const. art. VI, cl. 2, 7 the court determined that the provisions of the Act preempted the Florida statute that limited Peel's right to military leave to seventeen days annually.


The two issues presented in this appeal are whether an otherwise valid congressional exercise of the war power is rendered unenforceable by either the tenth or the eleventh amendment. We will treat them in reverse order.

  1. The Eleventh Amendment

    We first address the eleventh amendment issue, since it concerns the threshold question of whether a federal court may entertain this suit. Although Congress has the power under its war power and the necessary and proper clause, see note 4 Supra, to provide for the nation's defense, the eleventh amendment limits the power of the federal judiciary to enforce private actions against the states. While the language of the amendment limits the judicial power with regard to suits against a state by citizens of another state or by citizens or subjects of any foreign state, its limitation has been interpreted to extend to suits against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). 8 Peel is a Florida citizen and his suit is a suit against the state, since the Florida DOT is a component of the state government. State v. Love, 99 Fla. 333, 126 So. 374 (1930). In addition, where, as here, the liability for back wages and benefits under the Act must be paid from public funds in the state treasury, the eleventh amendment may also serve as a bar. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974); Jagnandan v. Giles, 538 F.2d 1166, 1176 (5th Cir. 1976), Cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977).

    Appellants urge us to reverse the district court and find that the state of Florida is immune from suit and has not waived its immunity. Although the relationship between congressional authorization of suits against a state and the necessity of a state's consent to suit has created confusion concerning the contours of the immunity that a state enjoys, 9 the development of the law involving the eleventh amendment leads us to conclude that this action could properly be brought in federal court. We endeavor

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    to examine the cases in this area to trace this development.

    Where a state consents to being sued, neither the eleventh amendment nor the doctrine of sovereign immunity is a bar. See Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959); Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883). In the absence of an express consent by a state to be sued, federal courts have still attempted to find some type of implied or constructive consent by the state to avoid the limitations of the eleventh amendment. Thus, in Parden v. Terminal Railway, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), the Court found that the state of Alabama, by its conduct in operating a railroad, had consented to suit in federal court under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (1976). In Parden, employees brought an FELA personal injury suit for damages against an Alabama-owned interstate railroad. The Court first examined whether Congress had intended to include state-owned as well as privately-owned rail carriers under the coverage of the FELA. Although there was no language in the FELA specifically authorizing suits against a state, Congress had made the FELA applicable to "every" interstate rail carrier, thus including the Alabama-owned railroad within its coverage.

    After finding that the state-owned railroad was within the coverage of the FELA, the Court next examined whether Congress had the power to subject Alabama to suit in light of the state's sovereign immunity. Justice Brennan, writing for a five-member majority, found that by empowering Congress to regulate commerce, "the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation." 377 U.S. at 192, 84 S.Ct. at 1212. However, the majority opinion then went on to explain that the eleventh amendment was not being overridden, since a state still could not be sued by an individual without its consent. The Court concluded that Alabama had consented to a suit under the FELA by its continued operation of an interstate railroad for approximately twenty years after Congress had made such railroads subject to suit under the FELA.

    Four Justices disagreed with the quality of statutory notice that was necessary before Congress could make the states subject to suit through their implied consent.

    It should not be easily inferred that Congress, in legislating pursuant to one article of the Constitution, intended to effect an automatic and compulsory waiver of rights arising out of another. Only when Congress has clearly considered the problem and expressly declared that any state which undertakes given regulable conduct will be deemed thereby to have waived its immunity should courts disallow the invocation of this defense.

    . . . If the automatic consequence of state operation of a railroad in interstate commerce is to be waiver of sovereign immunity, Congress' failure to bring home to the State the precise nature of its option makes impossible the "intentional relinquishment or abandonment of a known right or privilege" which must be shown before...

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