No. 98-821
In the Supreme Court of the United States
OCTOBER TERM, 1998
TENNESSEE BOARD OF REGENTS, ET AL., PETITIONERS
v.
DALVAN M. COGER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney General
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621
et seq., contains a clear abrogation of the States' Eleventh Amendment immunity
from suit by individuals.
2. Whether the extension of the Age Discrimination in Employment Act of
1967, 29 U.S.C. 621 et seq., to the States was a proper exercise of Congress's
power under Section 5 of the Fourteenth Amendment, thereby constituting
a valid exercise of congressional power to abrogate the States' Eleventh
Amendment immunity from suit by individuals.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-821
TENNESSEE BOARD OF REGENTS, ET AL., PETITIONERS
v.
DALVAN M. COGER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-25) is reported at 154
F.3d 296. The opinion of the district court (Pet. App. 26-41) is unreported.
JURISDICTION
The court of appeals entered its judgment on August 17, 1998. The petition
for a writ of certiorari was filed on November 16, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621
et seq., renders it unlawful for employers "to fail or refuse to hire
or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. 623(a)(1). The ADEA defines
"employer" to include "a State or political subdivision of
a State and any agency or instrumentality of a State or a political subdivision
of a State." 29 U.S.C. 630(b).1 The ADEA authorizes individuals aggrieved
by an employer's failure to comply with the Act to "bring a civil action
in any court of competent jurisdiction for such legal or equitable relief
as will effectuate the purposes of this chapter." 29 U.S.C. 626(c)(1).
The ADEA also expressly incorporates some of the enforcement provisions
of the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq. See 29 U.S.C.
626(b) ("The provisions of this chapter shall be enforced in accordance
with the powers, remedies, and procedures provided in sections 211(b), 216
* * *, and 217 of this title."). One of those incorporated provisions,
29 U.S.C. 216(b), authorizes employees to file suit "against any employer
(including a public agency) in any Federal or State court of competent jurisdiction."
2. Respondents are seventeen faculty members employed by petitioner Memphis
State University (which is now known as the University of Memphis). Pet.
App. 4. In 1989, respondents filed suit in federal district court alleging,
among other things, that petitioners engaged in individualized disparate
treatment against them, undertook a pattern or practice of discrimination,
and adopted policies with a disparate impact, all in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq. Pet.
App. 4. Following discovery and a bench trial, the district court entered
partial findings rejecting the individual disparate treatment claims of
eight faculty members. Petitioners subsequently moved to dismiss on the
ground that the Eleventh Amendment barred the litigation, citing this Court's
intervening decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996). Pet.
App. 5.
The district court granted the motion to dismiss, holding that the ADEA
lacks a clear textual statement evidencing Congress's intent to abrogate
the States' Eleventh Amendment immunity. Pet. App. 34-35. In the alternative,
the court found that any abrogation would be invalid because Congress did
not intend to exercise its authority under Section 5 of the Fourteenth Amendment
when it enacted the ADEA. Id. at 35-41.
3. The United States intervened on appeal, pursuant to 28 U.S.C. 2403(a),
to defend the abrogation of Eleventh Amendment immunity in the ADEA. The
court of appeals reversed. Pet. App. 1-25.
The court first held that the ADEA made "eminently clear" Congress's
intent to abrogate Eleventh Amendment immunity by "expanding the definition
of 'employer' to encompass 'a State or political subdivision of a State
and any agency or instrumentality of a State,'" knowing that "the
ADEA provides that an employer who violates the statute is liable for legal
and equitable relief." Pet. App. 9-10, 11 (citations omitted). While
noting that the Eleventh Circuit, in Kimel v. Florida Board of Regents,
139 F.3d 1426 (1998), had reached the opposite conclusion, the court of
appeals "join[ed] other appellate courts which have addressed this
issue since the Seminole Tribe decision and have also determined that the
definitional and enforcement provisions of the ADEA contain the necessary
clear statement of Congress's intent to abrogate state sovereign immunity."
Pet. App. 12.
The court of appeals also agreed with a number of other courts of appeals
in concluding that "Congress did not exceed the scope of its Section
5 authority" in extending the ADEA to the States. Pet. App. 20. Applying
City of Boerne v. Flores, 521 U.S. 507 (1997), the court held that Congress
had a basis in fact for concluding that older workers in the public sector
"were being deprived of employment on the basis of inaccurate and stigmatizing
stereotypes," Pet. App. 22 (quoting Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993)), and that Congress also could have determined that
the use of age in public sector employment often "violated the Constitution
because such classifications are arbitrary and discriminatory." Id.
at 23. The court of appeals noted that the statutory scheme enacted by Congress
in the ADEA was carefully tailored to ferret out and remedy such instances
of arbitrary discrimination by requiring employers generally to make employment
decisions based on the actual qualifications of an employee, rather than
simply on the employee's age. Id. at 23-24.
ARGUMENT
The court of appeals correctly ruled that the language of the ADEA clearly
expresses Congress's intent to abrogate the States' Eleventh Amendment immunity.
The court of appeals also properly concluded that the ADEA's abrogation
falls within the "wide latitude" (City of Boerne v. Flores, 521
U.S. 507, 520 (1997)) accorded Congress when it exercises its "comprehensive
remedial power" under Section 5 of the Fourteenth Amendment (City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 488 (1989) (opinion of O'Connor,
J.) (emphasis and quotation marks omitted)).
We, however, agree with petitioner (Pet. 9-10) that the courts of appeals
are divided on those questions. In fact, the conflict has grown since the
filing of the petition. On December 23, 1998, the Second Circuit joined
the Fifth, Sixth, Seventh, Ninth, and Tenth Circuits (and disagreed with
the Eighth and Eleventh Circuits) in holding both that Congress clearly
expressed its intent to abrogate the States' Eleventh Amendment immunity
in the text of the ADEA and that Section 5 of the Fourteenth Amendment supports
Congress's extension of the ADEA to the States and abrogation of their immunity.
Cooper v. New York State Office of Mental Health, No. 97-9433, 1998 WL 898290,
at *6 (2d Cir.).
Recognizing that the conflict is widespread and well-entrenched, the United
States has already filed a petition for a writ of certiorari in United States
v. Florida Board of Regents, No. 98-796, raising the same questions presented
in this petition.2 Private plaintiffs in that case have also petitioned
for a writ of certiorari in Kimel v. Florida Board of Regents, No. 98-791.
For the reasons stated in our petition and reply brief in No. 98-796, we
believe that those cases present the appropriate vehicle to resolve the
split in the circuits. The Florida Board of Regents cases also provide a
better context in which to decide the abrogation issues because those three
consolidated cases present the Court with a broader range of factual contexts
in which to evaluate the operation of the ADEA and its abrogation provisions.
CONCLUSION
The petition for a writ of certiorari should be held pending disposition
of the petitions in United States v. Florida Board of Regents, No. 98-796,
and Kimel v. Florida Board of Regents, No. 98-791, and, in the event one
or both of those petitions is granted, the petition in this case should
continue to be held pending this Court's decision. In the alternative, the
petition should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney General
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys
JANUARY 1999
1 The ADEA also applies to private employers, 29 U.S.C. 630(b) and (f),
and to the federal government, 29 U.S.C. 633a (1994 & Supp. II 1996).
The ADEA's application to the States mirrors in large part its application
to the federal government. Like the States, the federal government is required
to be "free from any discrimination based on age" in "[a]ll
personnel actions affecting employees or applicants for employment who are
at least 40 years of age." 29 U.S.C. 633a(a) (Supp. II 1996); see also
5 U.S.C. 2302(b)(1)(B) (1994 & Supp. II 1996). Congress has extended
the prohibitions and remedies of the ADEA to itself as well. See 2 U.S.C.
1311(a)(2) and (b)(2) (Supp. II 1996). It has exempted a small number of
positions, mostly in law enforcement and firefighting, from the ban on maximum
hiring ages and mandatory retirement ages, in both federal and state government
employment. See, e.g., 5 U.S.C. 3307, 8335 (federal); 29 U.S.C. 623(j) (Supp.
II 1996) (state).
2 We have furnished counsel for petitioners a copy of our petition and reply
brief in No. 98-796.