Hurd v. Pittsburg State University, 95-3236
| Citation | 109 F.3d 1540 |
| Decision Date | 01 April 1997 |
| Docket Number | No. 95-3236,95-3236 |
| Parties | 73 Fair Empl.Prac.Cas. (BNA) 1448, 70 Empl. Prac. Dec. P 44,615, 117 Ed. Law Rep. 95, 97 CJ C.A.R. 476 Chet A. HURD, Plaintiff-Appellant, v. PITTSBURG STATE UNIVERSITY, Defendant-Appellee. United States of America, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Mark A. Buchanan, The Popham Law Firm, P.C., Kansas City, Missouri, for Plaintiff-Appellant.
Kevin D. Case, Assistant Attorney General, Topeka, Kansas, for Defendant-Appellee.
Jessica Dunsay Silver and Seth M. Galanter, Attorneys, Department of Justice, Washington, D.C., filed a brief for Intervenor.
Before SEYMOUR, Chief Judge, PORFILIO, and LUCERO, Circuit Judges.
Plaintiff Chet A. Hurd appeals from a jury verdict in favor of defendant Pittsburg State University on Mr. Hurd's claim of discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. After concluding that Seminole Tribe of Florida v. Florida, --- U.S. ----, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), does not deprive us of jurisdiction over Mr. Hurd's claim against the state, we affirm.
Mr. Hurd brought this action against Pittsburg State University (PSU), claiming he was discharged in violation of the ADEA. PSU moved to dismiss on the basis that, as an agency of the state of Kansas, it was entitled to Eleventh Amendment immunity After a jury verdict for PSU, Mr. Hurd moved for a new trial arguing the district court had erred in overruling his Batson challenge to PSU's peremptory strike of the sole African-American juror. The district court denied the motion, Hurd v. Pittsburg State Univ., 892 F.Supp. 245 (D.Kan.1995) (Hurd III ), and Mr. Hurd appeals this single issue. While this appeal was pending, the Supreme Court held in Seminole Tribe that the Interstate Commerce Clause does not provide authority for Congress to abrogate a state's immunity from suit under the Eleventh Amendment. PSU asserted during oral argument on Mr. Hurd's appeal that the decision in Seminole Tribe substantially altered the landscape of Eleventh Amendment jurisprudence, requiring us to reconsider our decision in Hurd II on PSU's Eleventh Amendment immunity claim. We asked the parties to file supplemental briefs on this latter issue. The United States exercised its right under 28 U.S.C. § 2403(a) to intervene to defend the constitutionality of the ADEA as it applies to the states.
from suit in federal court. 1 The district court rejected that contention, holding that Congress abrogated state sovereign immunity by enacting the 1974 amendments to the ADEA. Hurd v. Pittsburg State Univ., 821 F.Supp. 1410 (D.Kan.1993) (Hurd I ). We affirmed on an interlocutory appeal. Hurd v. Pittsburg State Univ., 29 F.3d 564 (10th Cir.1994) (Hurd II ), cert. denied, 513 U.S. 930, 115 S.Ct. 321, 130 L.Ed.2d 282 (1994)
We first address PSU's claim that our Eleventh Amendment immunity determination in Hurd II was overruled by Seminole Tribe. In the case of an intervening Supreme Court ruling, a single panel is permitted to reconsider a previous Tenth Circuit decision to the extent the new case law invalidates our previous analysis. Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir.1996) (); United States v. Platero, 72 F.3d 806, 811 (10th Cir.1995) (). Because Seminole Tribe did indeed change Eleventh Amendment law, it is appropriate for us to review its impact on our previous ruling.
In Seminole Tribe, the Court considered whether Congress could abrogate state sovereign immunity by enacting the Indian Gaming REGULATORY Act of 1988 pursuant to the Indian Commerce Clause, U.S.CONST., art. I, § 8, cl. 3. Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1119. To resolve that question, the Court asked: "first, whether Congress has 'unequivocally expressed its intent to abrogate ... immunity;' and second, whether Congress has 'acted pursuant to a valid exercise of power.' " Id. at ----, 116 S.Ct. at 1123 (citations omitted). By applying standards set out in its prior opinions, the Court concluded that Congress had unquestionably intended to subject states to suit. Id. at ---- - ----, 116 S.Ct. at 1123-24. In discussing whether Congress has the power to abrogate state sovereign immunity, the Court acknowledged it had previously recognized two sources of authority for abrogation, the Commerce Clause and section five of the Fourteenth Amendment. Id. at ----, 116 S.Ct. at 1125. The Court then expressly overruled the Union Gas plurality's conclusion that the Interstate Commerce Clause constituted authority for abrogation of state sovereign immunity. Id. at ----, 116 S.Ct. at 1128 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989)). Likening the Indian Commerce Clause to the Interstate Commerce Seminole Tribe thus imposed two significant changes. First, it brought into sharp focus a two-part test that had been previously only implicitly stated. Id. at ----, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)). Second, it invalidated the Commerce Clause as an appropriate source of authority for abrogation of state sovereign immunity. Id. at ----, 116 S.Ct. at 1128. We apply those principles to this case.
Clause, id. at ----, 116 S.Ct. at 1127, the Court held that Congress lacked authority under those provisions to authorize suits by Indian tribes against the states, id. at ----, ---- - ----, 116 S.Ct. at 1128, 1131-32. The Court left untouched case law relying on the Fourteenth Amendment as authority. Id. at ----, 116 S.Ct. at 1128
In Hurd I, the district court presciently applied the two-part analysis now required by Seminole Tribe. Hurd I, 821 F.Supp. at 1412-13. The district court concluded that the 1974 ADEA amendments were enacted pursuant to Congress' Fourteenth Amendment authority and that Congress had intended to subject states to suit. Id. We affirmed the district court and expressly concurred in its conclusion that Congress had intended to abrogate state sovereign immunity. Hurd II, 29 F.3d at 565. We did not specifically state we were adopting the district court's conclusion that Congress had acted pursuant to its Fourteenth Amendment authority; we said only that "we affirm[ed] for substantially the same reasons given by the district court." Id. PSU now claims in light of Seminole Tribe that the district court's reasoning, and therefore our reasoning, was flawed in several respects. We will consider each of PSU's arguments.
PSU contends the district court's analysis of Congress' intent to abrogate was flawed for two reasons: the district court looked to the legislative history of the ADEA in violation of Seminole Tribe's express prohibition of such recourse; and the ADEA's jurisdictional provisions incorporate language previously found insufficient by the Court to establish intent to abrogate. 2 PSU's concerns about this part of the Seminole Tribe test are unfounded.
Seminole Tribe reaffirms that Congress' intent to abrogate state sovereign immunity must be " 'unmistakably clear in the language of the statute.' " Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1123 (quoting Dellmuth v. Muth, 491 U.S. 223, 227-28, 109 S.Ct. 2397, 2399-2400, 105 L.Ed.2d 181 (1989)). "Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment." Muth, 491 U.S. at 230, 109 S.Ct. at 2401 (emphasis added). The district court did not rely on legislative history in the intent-to-abrogate inquiry, Hurd I, 821 F.Supp. at 1413; it relied on legislative history only in its assessment of whether Congress had the power to abrogate state sovereign immunity, id. at 1412. PSU is wrong in assuming that the district court applied legislative history in the intent-to-abrogate prong of the Seminole Tribe test.
PSU further argues the district court erred in its evaluation because the ADEA shared language with a version of the Fair Labor Standards Act, a statute found not to clearly express Congress' intent to abrogate, see Employees v. Missouri Public Health Dept., 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973). Employees was decided long before Seminole Tribe. By raising Employees, PSU is re-arguing an issue already presented to the district court, Hurd I, 821 F.Supp. at 1413, and decided by this More importantly, Seminole Tribe does nothing to draw into question our conclusion regarding congressional intent. On the contrary, the Court there notes that "numerous references to the 'State' " as a defendant "make it indubitable that Congress intended ... to abrogate the States' sovereign immunity from suit." Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1124. We have no reason to question our decision in Hurd II that Congress intended to abrogate state sovereign immunity by enacting the 1974 amendments to the ADEA. 4
court, Hurd II, 29 F.3d at 565. As a single panel reviewing a Tenth Circuit decision, we are strictly concerned with new guidance provided by Seminole Tribe. We are not at liberty to revisit issues previously decided by this court and unaltered by Seminole Tribe. 3
PSU next turns its attention to the second prong of the Seminole Tribe test, Congress' power to abrogate state sovereign immunity. This is the area of analysis most significantly changed by Seminole Tribe, and we will consider it in some detail.
The district court expressly concluded that the 1974 amendments to the ADEA were enacted pursuant to Congress' power under section five of the Fourteenth Amendment. Hurd I, 821 F.Supp. at 1412. We...
To continue reading
Request your trial
-
Bowers v. National Collegiate Athletic Association, Act, Inc., Civil Action No. 97-2600 (D. N.J. 11/2/2000), Civil Action No. 97-2600.
...F. Supp. 531, 533 (N.D. Ill. 1997); In re Straight, 209 B.R. 540, 548 (D. Wyo. 1997) (interpreting Hurd v. Pittsburg State University, 109 F.3d 1540 (10th Cir. 1997)); Armstrong, 942 F. Supp. at 1263, and the plain language of section 504 indicates that the Spending Clause was at least in p......
-
Mete v. New York State O.M.R.D.D.
...in general, have concluded that the ADEA was amended pursuant to Congress' Fourteenth Amendment powers. See Hurd v. Pittsburg State University. 109 F.3d 1540 (10th Cir.1997); Blanciak v. Allegheny Ludlum Corp. 77 F.3d 690 (3d Cir.1996); Bell v. Purdue University, 975 F.2d 422 (7th Cir.1992)......
-
Migneault v. Peck, 97-2099
...dispose of the bulk of the University's argument since we have already ruled on this precise issue. In Hurd v. Pittsburg State University, 109 F.3d 1540, 1546 (10th Cir.1997), this court unequivocally held Congress validly abrogated Eleventh Amendment immunity by exercising its authority un......
-
U.S. v. Nichols, 98-1231
...a superseding contrary decision by the Supreme Court." In re Smith, 10 F.3d 723, 724 (10th Cir.1993); see also Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1542 (10th Cir.1997). Mr. Nichols attempts to avoid this rule by arguing Mr. McVeigh has petitioned for en banc review. Were this a su......
-
Preliminaries
...as long as the passage of time was not such as to make such a hearing impossible or unsatisfactory. Hurd v. Pittsburgh State University , 109 F.3d 1540, 1546 (10th Cir. 1997). In age discrimination suit, plaintiff claimed the court erred in overruling his Batson challenge to the university’......