Cooper v. New York State Office of Mental Health

• Decision Date: 23 December 1998
• Docket Number: Docket Nos. 97-9367,97-9433 and 97-9543
• Citation: 162 F.3d 770
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1316, 74 Empl. Prac. Dec. P 45,717 Ralph A. COOPER, Plaintiff-Appellee, v. NEW YORK STATE OFFICE OF MENTAL HEALTH, Bryan F. Rudes and Richard A. Lallier, Defendants-Appellants. John L. METE and Merrill J. Gottlieb, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees, v. NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES and New York State Department of Civil Service, Defendants-Appellants. Clifford DAVIS; Billie Levy, Executrix of the Estate of Nathan Levy, Jr.; and Robert Bard, Plaintiffs-Appellees, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF CONNECTICUT and The University of Connecticut, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 770

162 F.3d 770

78 Fair Empl.Prac.Cas. (BNA) 1316,

74 Empl. Prac. Dec. P 45,717

Ralph A. COOPER, Plaintiff-Appellee, v. NEW YORK STATE OFFICE OF MENTAL HEALTH, Bryan F. Rudes and Richard A. Lallier, Defendants-Appellants.

John L. METE and Merrill J. Gottlieb, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees, v. NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES and New York State

Department of Civil Service,

Defendants-Appellants.

Clifford DAVIS; Billie Levy, Executrix of the Estate of Nathan Levy, Jr.; and Robert Bard, Plaintiffs-Appellees, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF CONNECTICUT and The

University of Connecticut, Defendants-Appellants.

Docket Nos. 97-9367, 97-9433 and 97-9543.

United States Court of Appeals Second Circuit.

Argued Sept. 16, 1998.

Decided Dec. 23, 1998.

Lisa LeCours, Albany, NY, Assistant Attorney General of the State of New York (Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, of Counsel), for Defendants-Appellants.

Paul M. Shapiro, Storrs, CT, Assistant Attorney General for the State of Connecticut (Richard Blumenthal, Attorney General of the State of Connecticut, Gregory T. D'Auria and Bernard F. McGovern, Jr., Assistant Attorneys General, of Counsel and on the brief), for Defendants-Appellants.

Pauline R. Kinsella, Albany, NY (Hinman, Straub, Pigors & Manning, P.C., Deirdre Roney, of Counsel, for Plaintiff-Appellee Ralph A. Cooper; Law Offices of Leonard N. Flamm, New York City, for Plaintiffs-Appellees John L. Mete, et al.), for Plaintiffs-Appellees.

Geoffrey Judd Vitt, Norwich, VT (Brooks, McNally, Platto & Vitt, P.C., Eric D. Jones, of Counsel), for Plaintiffs-Appellees Clifford Davis, et al.

Seth M. Galanter, Washington, DC, Department of Justice, Civil Rights Division (Bill Lann Lee, Acting Assistant Attorney General, Jessica Dunsay Silver, of Counsel), for United States as Intervenor.

American Association of Retired Persons, Washington, DC (Cathy Ventrell-Monsees, Melvin Radowitz, of Counsel), for the American Association of Retired Persons, Amicus Curiae.

Before: FEINBERG, KEARSE and STRAUB, Circuit Judges.

FEINBERG, Circuit Judge:

Defendants-appellants in two of these three appeals are agencies or officials of New York State and defendants-appellants in the third appeal are the University of Connecticut and its Board of Trustees. The appeals are from two orders of the United States District Court for the Northern District of New York, one by Frederick J. Scullin, Jr., J., and the other by Neal P. McCurn, J., and an order of the United States District Court for District of Connecticut, Alvin W. Thompson, J. All of the orders denied defendants' motions to dismiss the complaints of the various plaintiffs-appellees. These three appeals present a single legal issue: whether federal courts have subject matter jurisdiction over claims alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), brought by individuals against state agencies or officials. In all three cases, the district courts found that plaintiffs' claims under the ADEA against the various defendants are not barred by the Eleventh Amendment. For reasons set forth below, we affirm.

I. Background

In November 1993, plaintiff Ralph A. Cooper, a New York state employee, brought an action in the Northern District against the New York State Office of Mental Health (OMH) and Bryan F. Rudes and Richard Lallier, two OMH employees, alleging that OMH's decision to terminate his employment violated the ADEA. ¹ In October 1991, plaintiffs John L. Mete and Merrill J. Gottlieb brought a class action in the Northern District against the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) and the New York State Department of Civil Service alleging, inter alia, that the complete elimination of the management position held by a defined class of employees, including plaintiffs, violated the ADEA. In May 1992, Clifford Davis, Nathan Levy, Jr. and Robert Bard, all faculty members of the University of Connecticut School of Law, brought an action in the United States District Court for the District of Connecticut against the Board of Trustees of the University of Connecticut and the University of Connecticut alleging that salary decisions made between 1984 and 1990 violated, inter alia, their rights under the ADEA.

In May 1997, defendant OMH moved to dismiss plaintiff Cooper's complaint pursuant to Fed.R.Civ.P. 12(b)(1), ² arguing that the Eleventh Amendment deprived the court of subject matter jurisdiction over ADEA complaints filed against States and state agencies because state sovereign immunity was not abrogated by Congress when it extended the coverage of the ADEA to include state employees. In October 1997, Judge Scullin denied defendant OMH's motion.

In June 1994, defendant OMRDD moved pursuant to Rule 56 for summary judgment as to all federal causes of action alleged by plaintiffs Mete and Gottlieb. In December 1996, the district court sua sponte raised the issue of its jurisdiction over ADEA claims brought against New York State and its agencies. In November 1997, Judge McCurn denied OMRDD's motion as to the ADEA claims. ³

In September 1996, the Connecticut defendants moved pursuant to Rule 12(b)(1) to dismiss the ADEA claims of plaintiffs Davis, Levy and Bard, arguing that the Eleventh Amendment deprived the district court of jurisdiction over those claims. In September 1997, Judge Thompson denied defendants' motion.

Each of these three orders was separately appealed in timely fashion. We have jurisdiction to review the challenged orders, despite their apparent lack of finality, because orders denying States' claims of Eleventh Amendment immunity fall under the collateral order doctrine, which allows immediate appellate review in certain circumstances of what would otherwise be non-final decisions. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). In January 1998, this Court ordered the appeals to be heard in tandem. For the reasons that follow, we hold that the Eleventh Amendment did not deprive the district courts of jurisdiction over these ADEA claims because Congress abrogated the States' sovereign immunity through a valid exercise of its power under § 5 of the Fourteenth Amendment.

II. Discussion

A district court's legal conclusion is reviewed by this court de novo. See Close v. New York, 125 F.3d 31, 35 (2d Cir.1997) (Rule 12(b)(1) motion); Frank v. Aaronson, 120 F.3d 10, 14 (2d Cir.1997) (Rule 56 motion).

The Eleventh Amendment provides the States with a substantial grant of immunity from suit in federal court. The 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.

In addition to barring suits in federal court against an unconsenting State by citizens of other States, the Amendment has been interpreted to bar suits in federal court against an unconsenting State by its own citizens. Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, Congress may abrogate the States' sovereign immunity if it (1) provides "a clear legislative statement" of its intent to abrogate, Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), and (2) legislates pursuant to a valid exercise of its enforcement power under § 5 of the Fourteenth Amendment. Id. at 59, 116 S.Ct. 1114.

In 1974, as more fully set forth below, Congress extended coverage of the ADEA to include state employees. We join the majority of our sister circuits in concluding that Congress satisfied both prongs of the Seminole Tribe test in enacting the 1974 amendments to the ADEA. See Migneault v. Peck, 158 F.3d 1131 (10th Cir.1998); Coger v. Board of Regents, 154 F.3d 296 (6th Cir.1998); Scott v. University of Mississippi, 148 F.3d 493 (5th Cir.1998); Keeton v. University of Nevada Sys., 150 F.3d 1055 (9th Cir.1998); Goshtasby v. Board of Trustees, 141 F.3d 761 (7th Cir.1998). But see Humenansky v. Regents of the Univ. of Minnesota, 152 F.3d 822 (8th Cir.1998) (holding that the ADEA does not satisfy either prong of the test); Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir.1998) (finding that ADEA lacks unmistakable expression by Congress of intent to abrogate; not reaching whether it had power to abrogate). The Eleventh Amendment issue has generated numerous opinions in the other circuits. Under all the circumstances, we will note our agreement with the other circuits on various issues and respond at greater length to the arguments of appellants only where we think it appropriate to do so. ⁴

A. Intent to Abrogate

The appeals before us stem in part from the Supreme Court's decision in Employees of Dept. of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). In Employees, the Court considered whether in enacting the Fair Labor Standards Act (FLSA) Congress had abrogated the States' immunity under the Eleventh Amendment. The Court focused on the language of the FLSA's enforcement section, 29 U.S.C. § 216(b), and concluded that the FLSA did not abrogate state sovereign immunity because Congress did not express such an intent by "clear language." Id. at 285, 93 S.Ct. 1614. ⁵ In response to Employees, in 1974 Congress amended § 216(b), changing "in any court of competent jurisdiction" to "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." FLSA Amendments of 1974, Pub.L. 93-259, § 6(d)(1), 88 Stat. 55, 61 (amending 29 U.S.C. § 216(b)). ⁶

In the same legislative package that amended the FLSA in...