Alaska v. Eeoc

• Decision Date: 01 May 2009
• Docket Number: No. 07-70174.,07-70174.
• Citation: 564 F.3d 1062
• Parties: State of ALASKA, Office of the Governor, Petitioner, v. EEOC; United States of America, Respondents, Margaret G. Ward, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

564 F.3d 1062

State of ALASKA, Office of the Governor, Petitioner, v. EEOC; United States of America, Respondents Margaret G. Ward, Intervenor.

No. 07-70174.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 24, 2008.

Filed May 1, 2009.

Brenda B. Page, Deputy State Attorney General for the State of Alaska, Anchorage, AK, for the petitioner.

Nelson Cohen, United States Attorney, Anchorage, AK, Ronald Cooper, General Counsel, and Paul D. Ramshaw, Equal Employment Opportunity Commission, Washington, DC, Marleigh D. Dover and Stephanie R. Marcus, Department of Justice, Washington, DC, for the respondent, The Equal Employment Opportunity Commission.

Marleigh D. Dover and Stephanie R. Marcus, Department of Justice, Washington, DC, for the respondent, The United States.

Lee Holen, Anchorage, AK, and Samuel R. Bagenstos, St. Louis, MO, for the intervenor.

On Petition for Review of an Order of the Equal Employment Opportunity Commission. Agency Nos. 11A40004 & 11A40005.

Before ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, BARRY G. SILVERMAN, KIM McLANE WARDLAW, MARSHA S. BERZON, RICHARD C. TALLMAN, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.

Opinion by Chief Judge Kozinski; Partial Concurrence and Partial Dissent by Judge O'Scannlain; Dissent by Judge Ikuta.

KOZINSKI, Chief Judge:

We must decide whether states have Eleventh Amendment immunity from claims under the Government Employee Rights Act of 1991 (GERA).

Facts

Lydia Jones and Margaret Ward worked in the office of then-Governor Walter Hickel of Alaska. Both were fired under disputed circumstances and filed complaints with the Equal Employment Opportunity Commission. Jones alleged that she was paid less because she is a black woman, sexually harassed and then retaliated against for complaining about the harassment. Ward alleged that she was paid less on account of her sex and that she was terminated because of statements she made supporting Jones's complaint.

The EEOC assigned the cases to an administrative law judge. Before the ALJ, Alaska argued that Jones and Ward's claims were barred by sovereign immunity. The ALJ disagreed. On interlocutory appeal, the EEOC denied the sovereign immunity defense and remanded for further proceedings. The state petitions for review of the EEOC's decision.¹

Analysis

The Eleventh Amendment protects states from being sued without their consent. This immunity applies by its terms to the judicial power, but the Supreme Court has held that some administrative proceedings sufficiently resemble civil actions to be circumscribed as well. Fed Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760-61, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). The contours of that principle aren't completely clear, but the parties seem to agree that EEOC proceedings are sufficiently court-like to implicate the Eleventh Amendment. We assume, without deciding, that this is true.²

Congress may abrogate this immunity in certain circumstances. To determine when it has validly done so, we must "resolve two predicate questions: ... whether Congress unequivocally expressed its intent to abrogate" and, if so, "whether Congress acted pursuant to a valid grant of constitutional authority." Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).

1. Congress's intent to abrogate sovereign immunity in the Government Employee Rights Act is both "unequivocal and textual." Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); see also Atascadero v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). As its title suggests, the statute is designed to give rights to government employees, including state employees, against their employers. The act amended Title VII to extend coverage of its employment discrimination provisions to such government employees: "[A]ny individual chosen or appointed, by a person elected to public office in any State ... to be a member of the elected official's personal staff," as Jones and Ward were, has rights under GERA to a workplace "free from any discrimination based on ... race, color, religion, sex, or national origin." 42 U.S.C. §§ 2000e-16c(a)(1), 2000e-16b(a)(1). GERA authorizes the EEOC to order remedies for violations of these rights, 42 U.S.C. § 2000e-16c(b)(1), including "back pay (payable by the employer ... responsible for the unlawful employment practice)." 42 U.S.C. § 2000e-16b(b)(1), cross-referencing 42 U.S.C. § 2000e-5(g) (emphasis added).

A "general authorization for suit in federal court" is an insufficient expression of congressional intent to abrogate state sovereign immunity, Atascadero, 473 U.S. at 246, 105 S.Ct. 3142, as are inferences from legislative history and statutory purpose, Dellmuth, 491 U.S. at 230, 232, 109 S.Ct. 2397. But Dellmuth and Atascadero "do[ ] not preclude congressional elimination of sovereign immunity in statutory text that clearly subjects States to suit for monetary damages, though without explicit reference to state sovereign immunity or the Eleventh Amendment." Dellmuth, 491 U.S. at 233, 109 S.Ct. 2397 (Scalia, J. concurring).³ GERA's text makes congressional intent to abrogate state sovereign immunity "unmistakably clear." Atascadero, 473 U.S. at 242, 105 S.Ct. 3142. GERA expressly covers state employees, and expressly gives them a right to collect damages "payable by the employer"— the state. 42 U.S.C. § 2000e-5(g)(1) (emphasis added).

The only way Congress could have been clearer would have been to say "this act abrogates state sovereign immunity." But the Supreme Court has made it quite plain that such magic words are unnecessary. Twice it has considered statutes with provisions like GERA's—giving employees a cause of action for damages, and separately providing that state employers will pay—and twice it concluded that the statutes adequately expressed Congress's intent to abrogate state sovereign immunity, even though neither statute includes the terms "abrogate," "state sovereign immunity" or "Eleventh Amendment." Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), considered the Age Discrimination in Employment Act (ADEA). One section of the ADEA incorporates an enforcement provision from a separate statute, the Fair Labor Standards Act (FLSA), "authoriz[ing] employees to maintain actions for backpay `against any employer (including a public agency) in any Federal or State court of competent jurisdiction.'" 528 U.S. at 67-68, 73-74, 120 S.Ct. 631 (quoting 29 U.S.C. § 216(b), as cross-referenced in 29 U.S.C. § 626(b)). A separate section of the FLSA defines "public agency" to include "the government of a State or political subdivision thereof." Id. at 74, 120 S.Ct. 631 (quoting 29 U.S.C. § 203(x)). The Court held that "[r]ead as a whole, the plain language of these provisions clearly demonstrates Congress' intent to subject the States to suit for money damages at the hands of individual employees," id. at 74, 120 S.Ct. 631, explaining that "our cases have never required that Congress make its clear statement in a single section or in statutory provisions enacted at the same time," id. at 76, 120 S.Ct. 631.

Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), likewise held that provisions of the Family and Medical Leave Act (FMLA) unequivocally expressed Congress's intent to abrogate state sovereign immunity. Like the ADEA, the FMLA authorizes suits against employers, and incorporates a definition of employers that includes public agencies, and a definition of public agencies that includes states, but doesn't refer to state sovereign immunity or the Eleventh Amendment. GERA is cut from the same cloth as the ADEA and the FMLA; its reference to states as potential defendants who must answer in damages is as clear, and its focus on government employers sharper, than in these two other statutes. GERA's provisions, entitling state employees to "back pay ... payable by the employer," 42 U.S.C. §§ 2000e-5(g)(1), 2000e-16c, unmistakably express Congress's intent to allow suits against states for damages. As in Kimel and Hibbs, "[t]he clarity of Congress' intent here is not fairly debatable." Hibbs, 538 U.S. at 726, 123 S.Ct. 1972. The remaining question, to which we now turn, is whether Congress had the authority to do what it intended.

2. Section 5 of the Fourteenth Amendment empowers Congress to "enforce, by appropriate legislation, the provisions of" that article, and state sovereign immunity may be abrogated in service of this goal. There are two ways in which Congress can do this. First, Congress may prohibit and provide a remedy for conduct that actually violates the Amendment. E.g., United States v. Georgia, 546 U.S. 151, 158, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (upholding a prohibition against cruel and unusual treatment of prisoners). Second, legislation "which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional." City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). We refer to the latter kind of legislation as prophylactic, and it must satisfy certain strict requirements designed to ensure that Congress doesn't substantively redefine the Fourteenth Amendment's guarantees. Before we can uphold prophylactic legislation, we must be convinced that it is congruent and proportional to the harm that Congress sought to prevent, and we often examine legislative findings as part of that inquiry. Id. at 520, 117 S.Ct. 2157. But the congruence and proportionality requirement applies only to prophylactic legislation; it doesn't apply to a direct remedy for unconstitutional conduct.

We therefore consider first whether Jones and Ward allege actual violations...