Velasquez v. Frapwell

• Decision Date: 06 February 1998
• Docket Number: No. IP 96-0557-C H/G.,IP 96-0557-C H/G.
• Citation: 994 F.Supp. 993
• Parties: Albert J. VELASQUEZ, Plaintiff, and The United States of America, Intervenor, v. Dorothy J. FRAPWELL and the Trustees of Indiana University, Defendants.
• Court: U.S. District Court — Southern District of Indiana

994 F.Supp. 993

Albert J. VELASQUEZ, Plaintiff, and The United States of America, Intervenor, v. Dorothy J. FRAPWELL and the Trustees of Indiana University, Defendants.

No. IP 96-0557-C H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

February 6, 1998.

Michael A. Kiefer, Garrison & Kiefer, Indianapolis, IN, for Plaintiff.

Carl E. Goldfarb, Department of Justice, Civil Division, Washington, DC, Tim A. Baker, Office of the United States Attorney, Indianapolis, IN, for Intervenor.

Susan B. Tabler, Ice Miller Donadio & Ryan, Indianapolis, IN, for all Defendants.

ENTRY ON DEFENDANT'S MOTION TO DISMISS

HAMILTON, District Judge.

The Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), has reenergized a "`lively debate in judicial and academic circles' about issues of sovereign immunity." Gorka v. Sullivan, 82 F.3d 772, 774 (7th Cir.1996). The debate continues here. The federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4311 et seq. ("USERRA"), prohibits discrimination in employment based upon an employee's membership or service in the uniformed services. See 38 U.S.C. § 4311(a). After Indiana University fired plaintiff Albert Velasquez from his position as associate university counsel, he sued the university for, among other claims, violating USERRA by discriminating against him on the basis of his service in the Indiana National Guard. The question presented here is whether the Eleventh Amendment to the United States Constitution bars a State employee from suing a State in federal court for violating the USERRA. The court concludes that the answer is yes. The Eleventh Amendment, as interpreted in Seminole Tribe, requires dismissal of plaintiff's USERRA claim for lack of jurisdiction.

Background

Indiana University hired plaintiff Albert Velasquez as an associate university counsel in 1975. At roughly the same time, plaintiff joined the Indiana National Guard. During the course of his part-time service with the Indiana National Guard, Velasquez has served as an artillery officer, military lawyer, and chief military judge for the State of Indiana, and he has been a member and coach of the Indiana National Guard's winter and summer biathlon teams, as well as the military skills team. Pl. Aff ¶¶ 12, 16. Velasquez served both Indiana University and the Indiana National Guard until Indiana University terminated his employment in late 1995. That termination is the subject of this lawsuit.

In Count II of his First Amended Complaint, Velasquez alleges that Indiana University violated USERRA by terminating his employment based upon his service in the National Guard.¹ Defendants Dorothy Frapwell and the Trustees of Indiana University (collectively, "Indiana University") have moved to dismiss the USERRA claim for lack of subject matter jurisdiction under Article III and the Eleventh Amendment of the United States Constitution. Defendants' motion to dismiss challenges the constitutionality of 38 U.S.C. § 4323(b), which specifically authorizes a private suit in federal court against a State employer for a violation of USERRA. Pursuant to 28 U.S.C. § 2403(a) and Fed.R.Civ.P. 24(c), the court notified the Attorney General of the United States so that the United States could intervene. The United States moved to intervene and filed a brief on December 17, 1997. Defendants responded on January 7, 1998. The United States' motion to intervene as a matter of right is hereby GRANTED pursuant to 28 U.S.C. § 2403(a) and Fed.R.Civ.P. 24(c).

Discussion

The Eleventh Amendment provides:

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 Seminole Tribe the Supreme Court explained the scope of the amendment:

Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that "`[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" Id., at 13 (emphasis deleted), quoting The Federalist No. 81, p. 487 (C. Rossiter ed 1961) (A.Hamilton). See also Puerto Rico Aqueduct and Sewer Authority [v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)] ("The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity"). For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States." Hans, supra, at 15.

517 U.S. at 53-54, 116 S.Ct. at 1122 (footnote omitted). In Seminole Tribe, the Supreme Court held that Congress cannot use the powers granted by Article I of the Constitution to give an individual a right to sue an unconsenting State in federal court. 517 U.S. at 71-74, 116 S.Ct. at 1131-32. The Court recognized, however, that the Eleventh Amendment does not bar Congress from authorizing private federal lawsuits of actions against States when it legislates under its enforcement powers granted by Section 5 of the Fourteenth Amendment. 517 U.S. at 59-60, 116 S.Ct. at 1125.

The first issue this court must address is Indiana University's suggestion that the court bypass the Eleventh Amendment issue and grant summary judgment on the merits of the USERRA claim. As explained below, the court believes that in this case, the court should not bypass the Eleventh Amendment issue. To decide the Eleventh Amendment issue, the court must then determine whether Indiana University is the legal equivalent of the State of Indiana for Eleventh Amendment purposes (it is) and whether Indiana has waived its Eleventh Amendment immunity (it has not). Finally, the court must decide whether Congress lawfully abrogated the States' Eleventh Amendment immunity in passing USERRA.

I. Should the Court Bypass the Eleventh Amendment Issue?

After this court invited the United States to intervene to defend the constitutionality of the provision of USERRA authorizing private actions against State employers, Indiana University suggested that the court bypass the Eleventh Amendment issue it raised. The university argues that this court's grant of summary judgment on plaintiff's claims of national origin discrimination would also support summary judgment on the merits of the USERRA claim. The university points out that the court has already found that the undisputed facts show that plaintiff was not meeting its legitimate expectations and that its proffered reasons for firing him were not pretextual. The university contends that these legal conclusions also defeat plaintiff's USERRA claim analyzed under the indirect proof method drawn from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that is used to evaluate employment discrimination claims under Title VII. See also Pignato v. American Trans Air, Inc., 14 F.3d 342, 346 (7th Cir.1994) (approving use of indirect proof method to decide pre-USERRA claim under Vietnam Era Veterans' Readjustment Assistance Act).

Courts ordinarily decide Eleventh Amendment issues before reaching the merits of a claim. The Seventh Circuit has held, however, that where jurisdictional issues are difficult and the merits of a case "are simple, straightforward and easily resolved," a court may decline to address the jurisdictional issue if it would make no difference in the ultimate outcome of the case. Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir.1996); accord, Safeco Life Insurance Co. v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir. 1995) (when jurisdictional issues are difficult and merits are easy, "it is permissible if inelegant and even `illogical' to skip to the latter, provided there is no practical difference in the outcome"). In addition, although federal courts often speak of Eleventh Amendment immunity as a bar to "jurisdiction" (as in Seminole Tribe itself, 517 U.S. at 53-54, 72-74, 116 S.Ct. at 1122, 1132), its jurisdictional character has an unusually slippery nature. Federal courts constantly remind themselves and litigants that defects in subject matter jurisdiction cannot be waived and that subject matter jurisdiction cannot be conferred by consent of the parties. Neither of these propositions is (consistently) true with respect to the Eleventh Amendment. See Idaho v. Coeur d'Alene Tribe of Idaho, ___ U.S. ___, ___, 117 S.Ct. 2028 2033, 138 L.Ed.2d 438 (1997) (Eleventh Amendment protection can be waived because it "enacts a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction"); Patsy v. Board of Regents, 457 U.S. 496, 516 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) ("we have never held that [the Eleventh Amendment] is jurisdictional in the sense that it must be raised and decided by this Court on its own motion"); Komyatti v. Bayh, 96 F.3d 955, 959 n. 4 (7th Cir.1996). Indiana University asks the court to take this approach and bypass the Eleventh Amendment issue here, pointing out that this court recently took a similar approach in an age discrimination case in which Eleventh Amendment issues were raised. See Foster v. Ivy Tech State College, No. EV...