No. 98-796
In the Supreme Court of the United States
OCTOBER TERM, 1998
UNITED STATES OF AMERICA, PETITIONER
AND
J. DANIEL KIMEL, JR., ET AL.
v.
FLORIDA BOARD OF REGENTS
UNITED STATES OF AMERICA, PETITIONER
AND
WELLINGTON N. DICKSON, A/K/A "DUKE"
v.
FLORIDA DEPARTMENT OF CORRECTIONS
UNITED STATES OF AMERICA, PETITIONER
AND
RODERICK MACPHERSON AND MARVIN NARZ
v.
UNIVERSITY OF MONTEVALLO
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
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. 98-796
UNITED STATES OF AMERICA, PETITIONER
AND
J. DANIEL KIMEL, JR., ET AL.
v.
FLORIDA BOARD OF REGENTS
UNITED STATES OF AMERICA, PETITIONER
AND
WELLINGTON N. DICKSON, A/K/A "DUKE"
v.
FLORIDA DEPARTMENT OF CORRECTIONS
UNITED STATES OF AMERICA, PETITIONER
AND
RODERICK MACPHERSON AND MARVIN NARZ
v.
UNIVERSITY OF MONTEVALLO
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States of America, respectfully
petitions for a writ of certiorari to review the judgments of the United
States Court of Appeals for the Eleventh Circuit in these cases.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-56a) is reported at
139 F.3d 1426. The opinions of the district courts in Kimel v. Florida Board
of Regents (App., infra, 57a-62a), and Dickson v. Florida Department of
Corrections (App., infra, 72a-76a), are unreported. The opinion of the district
court in MacPherson v. University of Montevallo (App., infra, 63a-71a) is
reported at 938 F. Supp. 785.
JURISDICTION
The court of appeals entered its judgments on April 30, 1998. Petitions
for rehearing were denied on August 17, 1998. App., infra, 77a-79a, 81a-83a.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The relevant constitutional and statutory provisions involved are set forth
at App., infra, 86a-102a.
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. 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. In Kimel v. Florida Board of Regents, plaintiff J. Daniel Kimel and others
are current and former faculty and librarians at Florida State University
and Florida International University. They filed suit in federal district
court alleging, inter alia, that the respondent's decision not to provide
them with certain salary increases "was an intentional act of age discrimination"
in violation of the ADEA. Kimel Complaint, C.A. J.A. 91-6. Respondent Florida
Board of Regents moved to dismiss on the ground of Eleventh Amendment immunity.
The district court denied the motion. The court held that the ADEA contained
a clear abrogation of immunity, and the abrogation was valid because the
ADEA was a proper exercise Congress's power under Section 5 of the Fourteenth
Amendment to enforce the Equal Protection Clause. App., infra, 57a-62a.
In Dickson v. Florida Department of Corrections, plaintiff Wellington N.
Dickson is a correctional officer employed by respondent Florida Department
of Corrections. He filed suit in federal district court alleging that respondent
failed to promote him and took other adverse employment action against him
in violation of the ADEA and the Americans with Disabilities Act of 1990
(Disabilities Act), 42 U.S.C. 12101 et seq. App., infra, 72a. Respondent
Florida Department of Corrections moved to dismiss on the ground of Eleventh
Amendment immunity. The district court denied the motion. The court held
that both the ADEA and the Disabilities Act contained clear abrogations
of immunity, and that the abrogations were valid because the ADEA and the
Disabilities Act were proper exercises of Congress's power under Section
5 of the Fourteenth Amendment to enforce the Equal Protection Clause. App.,
infra, 73a-76a.
Finally, in MacPherson v. University of Montevallo, the plaintiffs Roderick
MacPherson and Marvin Narz are two associate professors employed by the
University of Montevallo, which is an instrumentality of the State of Alabama.
App., infra, 63a-64a. They filed suit in federal district court alleging,
inter alia, that respondent University of Montevallo "has engaged in
a pattern and practice of discrimination against them and a continuing practice
of treating younger faculty members more favorably than older faculty members
with regard to salaries and promotions," in violation of the ADEA.
App., infra, 64a. Respondent University of Montevallo defended in part on
the ground that the Eleventh Amendment barred the litigation. Although the
district court ruled that Congress clearly intended to abrogate States'
Eleventh Amendment immunity, the court also held that Congress had no power
to do so because the ADEA could not have been enacted pursuant to Congress's
authority to enforce the Fourteenth Amendment. App., infra, 65a-71a.
3. Plaintiffs in MacPherson appealed from the dismissal of their action,
while the defendants in Kimel and Dickson took interlocutory appeals of
right from the denial of Eleventh Amendment immunity, see Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).
On appeal, the United States intervened in each action to defend the constitutionality
of the ADEA's abrogation of States' Eleventh Amendment immunity. See 28
U.S.C. 2403(a). The court of appeals consolidated the cases for argument
and concluded that the ADEA does not abrogate the States' Eleventh Amendment
immunity. App., infra, 1a-56a.
The majority was divided on the rationale for its decision, one judge finding
that Congress did not clearly state an intent to abrogate Eleventh Amendment
immunity, and the other judge concluding that Congress lacked the power
to abrogate Eleventh Amendment immunity because the ADEA is not a proper
exercise of congressional power under Section 5 of the Fourteenth Amendment.
Judge Edmondson found that Congress did not make its intent to abrogate
Eleventh Amendment immunity "as clear as is the summer's sun,"
App., infra, 9a, because the statute does not contain "in one place,
a plain, declaratory statement that States can be sued by individuals in
federal court." Id. at 7a. In his view, the ADEA's enforcement provisions,
29 U.S.C. 626(b) and (c), are consistent with the enforcement of the ADEA
against state defendants by the federal government alone in federal court
and by private plaintiffs in state court. App., infra, 4a n.4, 11a &
n.13.
Judge Cox did not reach the question of the clarity of Congress's intent
to abrogate, but concurred in part in the judgment on the ground that the
ADEA was not a proper exercise of power under Section 5 of the Fourteenth
Amendment and therefore could not give rise to authority to abrogate the
States' Eleventh Amendment immunity. Reviewing the legislative history of
the ADEA's extension to the States, Judge Cox concluded that "Congress
did not enact the ADEA as a proportional response to any widespread violation
of the elderly's constitutional rights," App., infra, 48a, and thus
was not exercising the power to "enforce the Fourteenth Amendment rights
the Supreme Court has recognized." Id. at 45a.
Chief Judge Hatchett, dissenting from the majority's disposition of the
ADEA claims, disagreed on both points. Declining to require Congress to
use "any 'magic words' to abrogate effectively," Chief Judge Hatchett
agreed with "virtually every other court that has addressed the question"
that "Congress made an 'unmistakably clear' statement of its intent
to abrogate the states' sovereign immunity in the ADEA." App., infra,
18a, 20a.
Chief Judge Hatchett also joined other courts in concluding "that the
ADEA falls squarely within the enforcement power that Section 5 of the Fourteenth
Amendment confers on Congress." App., infra, 24a. He found that Congress
prohibited age discrimination in employment because it had determined that
such discrimination "was generally based on unsupported stereotypes."
Id. at 29a. He noted that the statutory scheme enacted by Congress was tailored
to ferreting out such instances of arbitrary discrimination because it permits
employers to defend their age-based decisions on the grounds that such distinctions
are "bona fide occupational qualification[s] reasonably necessary to
the normal operation of the particular business," or are based on "reasonable
factors other than age." Id. at 32a n.12 (quoting 29 U.S.C. 623(f)(1)).2
REASONS FOR GRANTING THE PETITION
The judgment of the Eleventh Circuit has significantly eroded the scope
and operation of important civil rights legislation. The decision, moreover,
is in direct conflict with the rulings of five other circuits, which have
upheld the ADEA's abrogation of States' Eleventh Amendment immunity. The
issues have thus been thoroughly aired in the courts of appeals; postponing
review is not likely to contribute to the reasoned resolution of the questions
presented. Furthermore, cases presenting the same issues are pending in
three other circuits. The questions presented are thus of recurring importance,
and conflicting decisions are likely to proliferate in the courts of appeals.
Accordingly, this Court's review is warranted.
1. Following this Court's decisions in Seminole Tribe v. Florida, 517 U.S.
44 (1996), and City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the courts
of appeals have issued directly conflicting decisions on whether the ADEA
abrogates the States' Eleventh Amendment immunity from suit in federal court.
As this Court explained in Seminole Tribe, the abrogation inquiry contains
two elements: "first, [we ask] whether Congress has 'unequivocally
expresse[d] its intent to abrogate the immunity,' * * * and second, [we
ask] whether Congress has acted 'pursuant to a valid exercise of power.'"
Seminole Tribe, 517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68
(1985)). The conflict in the courts of appeals embraces both the question
of congressional intent and of congressional power to abrogate.
a. The opinion of Judge Edmondson below (App., infra, 2a-15a), like the
Eighth Circuit's decision in Humenansky v. Regents of the Univ. of Minn.,
152 F.3d 822 (1998), has declared that the ADEA "does not reflect an
unmistakably clear intent to abrogate Eleventh Amendment immunity."
Humenansky, 152 F.2d at 825. Five other circuits expressly disagree, finding
Congress's intent to abrogate manifest in the ADEA's text. See App., infra,
12a n.14, and Humenansky, 152 F.3d at 825 & n.2 (both noting disagreement);
see also Migneault v. Peck, No. 97-2099, 1998 WL 741545, at *3 (10th Cir.
Oct. 23, 1998) (citing Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1543-1544,
1546 (10th Cir. 1997)) (Congress clearly expressed its intent to abrogate
in the text of the ADEA); Coger v. Board of Regents, 154 F.3d 296, 301-302
(6th Cir. 1998) (same); Keeton v. University of Nev. Sys., 150 F.3d 1055,
1057 (9th Cir. 1998) ("We join the overwhelming majority of our sister
circuits in holding that Congress clearly expressed its intention to abrogate
states' immunity in private suits for violations of the ADEA."); Scott
v. University of Miss., 148 F.3d 493, 500 (5th Cir. 1998) ("[W]e hold
that the language of § 626(b) and § 216(b) in conjunction with
the specific extension of the ADEA to state employers unequivocally expresses
Congress's intent that state employers may be sued under the ADEA in federal
courts."); Goshtasby v. Board of Trustees, 141 F.3d 761, 765-766 (7th
Cir. 1998) (adhering to Davidson v. Board of Governors of State Colleges
& Univs., 920 F.2d 441, 443 (7th Cir. 1990)). Two additional courts
of appeals have indicated in dicta that Congress's intent to abrogate is
sufficiently clear. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
695 (3d Cir. 1996); Santiago v. New York State Dep't of Correctional Servs.,
945 F.2d 25, 31 (2d Cir. 1991), cert. denied, 502 U.S. 1094 (1992). The
issue is currently pending in three circuits. See, e.g., Jones v. WMATA,
No. 97-7186 (D.C. Cir.) (oral argument heard Sept. 9, 1998); Davis v. University
of Conn., No. 97-9367 (2d Cir.) (oral argument heard Sept. 16, 1998); Young
v. Pennsylvania House of Representatives, No. 98-7130 (3d Cir.) (oral argument
heard Oct. 27, 1998). 3
The question of Congress's intent to abrogate Eleventh Amendment immunity
in the ADEA has thus been extensively evaluated and considered by the courts
of appeals. Postponing review will not contribute measurably to analysis
of the issue. The conflict is firmly entrenched and incapable of resolution
except by this Court.
b. Judge Cox concluded (App., infra, 42a-56a) that, even if Congress's intent
to abrogate were clear, Congress lacked power to effect such an abrogation
because the ADEA is not a proper exercise of Congress's legislative power
under Section 5 of the Fourteenth Amendment. The Eighth Circuit has similarly
ruled that the ADEA could not have been enacted pursuant to Congress's Section
5 power. Humenansky, 152 F.3d at 826-828. Those decisions are in direct
conflict with the rulings of the Fifth, Sixth, Seventh, Ninth, and Tenth
Circuits, all of which have upheld the ADEA as proper Section 5 legislation.
See Migneault, 1998 WL 741545, at **3-7 (citing Hurd, 109 F.3d at 1546);
Coger, 154 F.3d at 302-307; Keeton, 150 F.3d at 1057-1058; Scott, 148 F.3d
at 500-503; Goshtasby, 141 F.3d at 766-772.4 The pendency of three other
cases presenting the same question (see p. 9, supra) demonstrates that the
conflict over the scope of Congress's Section 5 power is not likely to disappear.5
This Court's review is necessary to resolve that conflict and to clarify
the scope of Congress's "comprehensive remedial power" under Section
5 of the Fourteenth Amendment. See City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 488 (1989) (O'Connor, J.) (quoting Fullilove v. Klutznick,
448 U.S. 448, 483 (1980)).
2. The questions presented are of broad and enduring importance and thus
merit this Court's review. The ADEA is "part of a wider statutory scheme
to protect employees in the workplace" from "invidious bias in
employment decisions." McKennon v. Nashville Banner Publ'g Co., 513
U.S. 352, 357 (1995). As a consequence of the Eleventh Circuit's decision
here and the Eighth Circuit's decision in Humenansky v. Regents of the University
of Minnesota, supra, the operation of important civil rights legislation
in one-fifth of the States has been significantly impaired. Unlike litigants
in the circuits where the ADEA's abrogation of Eleventh Amendment immunity
has been sustained, employees of state governments in the Eleventh and Eighth
Circuits cannot fully enforce their federal rights under the ADEA in federal
court.6
The questions of the clarity with which Congress must speak to abrogate
state immunity and the scope of Congress's Section 5 enforcement power,
moreover, are of great and recurring importance to the federal government.
Judge Edmondson's opinion in this case, like the Eighth Circuit's decision
in Humenansky, imposes stringent conditions on Congress's exercise of its
legislative power, in the form of requiring elaborate verbal formulations
to effect an Eleventh Amendment abrogation. Because those conditions do
not apply in other circuits, this Court should grant review to establish
a single, uniform test for effective abrogation by Congress of Eleventh
Amendment immunity.
Furthermore, Eleventh Amendment issues similar to those presented by this
case are being actively litigated in numerous cases arising under other
federal statutes, such as the Americans with Disabilities Act of 1990, 42
U.S.C. 12101 et seq., the Equal Pay Act of 1963, 29 U.S.C. 206(d), and the
Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. See, e.g.,
Clark v. California, 123 F.3d 1267, 1269-1271 (9th Cir. 1997), cert. denied,
118 S. Ct. 2340 (1998); Timmer v. Michigan Dep't of Commerce, 104 F.3d 833,
837-838 (6th Cir. 1997); Garrett v. Board of Trustees, No. 98-6069 (11th
Cir.) (pending). While the provisions and scope of those statutes differ
in many respects from those of the ADEA, the resolution of the abrogation
issues under the ADEA may shed light on the resolution of those issues under
other statutes.
3. This Court's review is necessary to correct the court of appeals' erroneous
determination that Congress did not abrogate the States' Eleventh Amendment
immunity in the ADEA.
After extensive study and hearings (see EEOC v. Wyoming, 460 U.S. 226, 229-231
(1983)), Congress enacted the ADEA to redress a serious national problem
of arbitrary discrimination against older workers by employers based on
"inaccurate and stigmatizing stereotypes." Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993); see also 29 U.S.C. 621. Recognizing that
age may sometimes be a legitimate criterion for employment decisions, Congress
created a calibrated prohibition that, in certain circumstances, bars the
use of age as a proxy for the ability of workers over the age of 40 (29
U.S.C. 631(a)), unless age is a "bona fide occupational qualification
reasonably necessary to the normal operation of the particular business,"
29 U.S.C. 623(a) and (f)(1). The ADEA thus requires that employers either
base their employment decisions on "reasonable factors other than age"
(29 U.S.C. 623(f)(1)), or else demonstrate that age is a reasonably necessary
employment consideration.
a. Congress has "unequivocally expresse[d] its intent to abrogate"
the States' Eleventh Amendment immunity in the text of the ADEA. See Seminole
Tribe, 517 U.S. at 55 (quoting Green, 474 U.S. at 68). In 1974, Congress
extended the protections of the ADEA to state employees. See 29 U.S.C. 630(b)
and (f); see also Act of Apr. 8, 1974, Pub. L. No. 93-259, § 28(a)(2),
88 Stat. 74.7 In so doing, Congress placed States as employers squarely
within an existing enforcement scheme that specifically and expressly contemplates
suits by employees against employers in federal court. First, 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). Second, the ADEA expressly incorporates some of the
enforcement mechanisms of the Fair Labor Standards Act of 1938, including
a provision that authorizes employees to file suit "against any employer
(including a public agency) in any Federal or State court of competent jurisdiction."
29 U.S.C. 216(b) (emphasis added). See 29 U.S.C. 626(b).8
To abrogate Eleventh Amendment immunity, Congress need not mention the Eleventh
Amendment or incant particular words or phrases. The statute need only clearly
create a cause of action against States and grant jurisdiction to federal
courts to hear those claims. See Seminole Tribe, 517 U.S. at 47; Dellmuth
v. Muth, 491 U.S. 223, 233 (1989) (Scalia, J., concurring). In one sentence,
Section 216(b) evinces Congress's intent that employees be permitted to
sue state employers in federal court.9 No more is required. By insisting
on an elaborate explication of congressional intent, the decisions of the
court of appeals here and in Humenansky v. Regents of the University of
Minnesota, supra, impermissibly intruded on Congress's legislative authority
and discretion.
b. In Seminole Tribe, this Court reiterated that Congress retained its power
to abrogate Eleventh Amendment immunity when enacting "appropriate"
legislation to "enforce" the provisions of the Fourteenth Amendment.
See 517 U.S. at 65-66, 71-72 n.15 (citing Fitzpatrick v. Bitzer, 427 U.S.
445 (1976)). Judge Cox's determination (App., infra, 48a-53a), echoed by
the Humenansky court (152 F.3d at 826-828), that the ADEA is not proper
Section 5 legislation reflects an incorrect application of this Court's
precedents.
In City of Boerne v. Flores, supra, this Court explained what constitutes
"appropriate" legislation under Section 5 of the Fourteenth Amendment.
The Court emphasized that the authority to enforce the Fourteenth Amendment
is a broad power to remedy past and present discrimination and to prevent
future discrimination. Id. at 2163, 2172. Accordingly, under Section 5,
Congress can prohibit activities that themselves are not unconstitutional
when it acts to enforce a constitutional right. Id. at 2163, 2167, 2169;
see also City of Rome v. United States, 446 U.S. 156, 177 (1980) (Congress
may prohibit state conduct that "create[s] the risk" that constitutional
rights will be infringed). The Court held, however, that there must be a
"congruence and proportionality" between the identified constitutional
harms and the statutory remedy. Flores, 117 S. Ct. at 2164.
The ADEA passes muster for three reasons. First, the ADEA seeks to redress
and prevent unconstitutionally arbitrary discrimination against older workers
and thus enforces a recognized constitutional right. While classifications
based on age are subject only to rational basis review, see, e.g., Massachusetts
Bd. of Retirement v. Murgia, 427 U.S. 307, 312-314 (1976), there can be
no question that "arbitrary and irrational discrimination violates
the Equal Protection Clause under even [the] most deferential standard of
review." Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988).
In every case, the ADEA places the burden of persuasion on the employee
to prove, in the first instance, that he or she was adversely affected "because
of such individual's age." 29 U.S.C. 623(a)(1). The ADEA's provisions
thus are not triggered until an employee demonstrates unequal treatment
and, concomitantly, a risk that unconstitutionally arbitrary action lurks.10
Moreover, Congress's extensively studied and exhaustively considered determination
that there is a need to provide statutory protection for victims of age
discrimination reflects a factual judgment, based upon a comprehensive legislative
record that, while age can sometimes be used constitutionally in employment
decisions, it has often been used arbitrarily and irrationality in that
context. See EEOC v. Wyoming, 460 U.S. at 229-231. "Congress' promulgation
of the ADEA was prompted by its concern that older workers were being deprived
of employment on the basis of inaccurate and stigmatizing stereotypes"
that physical and mental stamina invariably declined with age. Hazen Paper
Co., 507 U.S. at 610. It has long been recognized that Congress's Section
5 power "include[s] the power to define situations which Congress determines
threaten principles of equality and to adopt prophylactic rules to deal
with those situations." Croson, 488 U.S. at 490 (O'Connor, J.). As
an exercise of Congress's "specially informed legislative competence",
the ADEA's cabined prohibition of age discrimination falls squarely within
the Section 5 enforcement power. Katzenbach v. Morgan, 384 U.S. 641, 656
(1966); see also Flores, 117 S. Ct. at 2172 ("It is for Congress in
the first instance to determin[e] whether and what legislation is needed
to secure the guarantees of the Fourteenth Amendment, and its conclusions
are entitled to much deference.") (internal quotation marks omitted).
Second, the ADEA provides a discrete and calibrated remedy for a narrowly
defined range of governmental (and private) conduct. The ADEA applies only
to employment. Congress has thus carefully confined its prohibition of age
discrimination to an area of vital concern and importance to the affected
individuals- their ability to earn a living and thus to subsist.11
Even within the area of employment, moreover, Congress has provided significant
exemptions for States. See 29 U.S.C. 623(f) and (j) (permitting mandatory
retirement ages for law enforcement officers and firefighters), 630(f) (excluding
elected officials and their personal staffs, and persons "on the policymaking
level") (1994 & Supp. II 1996). Furthermore, where age restrictions
are in fact a "bona fide occupational qualification reasonably necessary
to the normal operation of the particular business," 29 U.S.C. 623(f)(1),
an employer may freely use age as a criterion for employment decisions.
The primary obligation that the ADEA imposes on the State as employer, then,
is not to treat qualified older workers differently simply because they
are viewed as "old." See Hazen Paper Co., 507 U.S. at 611.12
Third, Congress has acted in a context in which the consequences of state
action have a direct impact on federal operations and the federal fisc.
See EEOC v. Wyoming, 460 U.S. at 231 ("arbitrary age discrimination
* * * deprive[s] the national economy of the productive labor of millions
of individuals and impose[s] on the governmental treasury substantially
increased costs in unemployment insurance and federal Social Security benefits").
The fact that the regulated state conduct reverberates far beyond the state's
borders and is intertwined with independent federal governmental interests
underscores the proportionality of Congress's remedial action in the ADEA.
In sum, given the serious consequences for individuals and the federal government
of irrational age discrimination and the carefully measured remedy imposed
on State employers, the ADEA manifests a "congruence" between
the "means used" (i.e., prohibiting employment decisions based
on age unless the employer can show that using an employee's age, as opposed
to actual indicia of ability, is reasonably necessary), and the "ends
to be achieved" (i.e., preventing arbitrary discrimination based on
age). See Flores, 117 S. Ct. at 2169. As appropriate Section 5 legislation,
therefore, the ADEA abrogated the States' Eleventh Amendment immunity from
suit in federal court.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
SETH M. GALANTER
Attorneys
NOVEMBER 1998
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) & (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) (state) (Supp. II 1996).
2 With regard to the claim raised in Dickson involving the Disabilities
Act, Judge Edmondson and Chief Judge Hatchett agreed that the Disabilities
Act validly abrogated the States' Eleventh Amendment immunity. App., infra,
13a-15a, 21a, 33a-41a. Judge Cox dissented. Id. at 53a-56a. See also Seaborn
v. Florida, 143 F.3d 1405, 1407 (11th Cir. 1998).
3 The First Circuit also ruled, prior to Seminole Tribe, that Congress intended
to abrogate the States' Eleventh Amendment immunity for ADEA suits. See
Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 700-701 (1st Cir. 1983).
4 Prior to this Court's decision in City of Boerne v. Flores, supra, the
First and Fourth Circuits had also ruled that the ADEA falls within Congress's
Section 5 power. See Ramirez, 715 F.2d at 698-700; Arritt v. Grisell, 567
F.2d 1267, 1271 (4th Cir. 1977); see also Blanciak, 77 F.3d at 695 (dicta).
5 The courts of appeals have candidly acknowledged that their rulings are
in conflict. See Migneault, 1998 WL 741545, at *7 ("We recognize there
is a split in the circuits on this issue."); Humenansky, 152 F.3d at
826-827 (noting that the "circuits to consider the issue since Flores
have reached conflicting conclusions"); Coger, 154 F.3d at 302 (citing
Kimel with "But see"); Keeton, 150 F.3d at 1057 (same); Scott,
148 F.3d at 499 n.3 (noting that Kimel "reached the opposite result").
Indeed, subsequent to the Eleventh Circuit's decision in these cases, the
Seventh Circuit expressly "reaffirm[ed]" its holding that "the
ADEA is a proper exercise of Congress's § 5 enforcement power under
the Fourteenth Amendment," and explained that "[t]he intervening
and contrary decision from the Eleventh Circuit [in Kimel] has not given
us reason to overrule Goshtasby." Debs v. Northeastern Ill. Univ.,
153 F.3d 390, 394 (7th Cir. 1998).
6 The ability to enforce federal rights in state court is the issue presented
in Alden v. Maine (cert. granted, No. 98-436 (Nov. 9, 1998)), reviewing
the holding of the Maine Supreme Judicial Court that state courts may refuse
to entertain private causes of action to enforce federal statutory rights
on the basis of state sovereign immunity.
7 Neither respondents nor the court of appeals disputes that the purpose
of the 1974 amendment was to render the States subject to the ADEA's substantive
terms, or that the extension was a valid exercise of Congress's power under
the Commerce Clause. See Gregory v. Ashcroft, 501 U.S. 452, 467-468 (1991);
EEOC v. Wyoming, 460 U.S. 226, 243 (1983). The Commerce Clause, however,
does not independently support Congress's abrogation of the States' Eleventh
Amendment immunity from ADEA suits brought by individuals in federal court.
See Seminole Tribe, 517 U.S. at 57-73. In both Gregory, 501 U.S. at 468,
and EEOC v. Wyoming, 460 U.S. at 243 & n.18, the Court "reserved
the questions whether Congress might also have passed the ADEA extension
pursuant to its powers under § 5 of the Fourteenth Amendment, and whether
the extension would have been a valid exercise of that power." Gregory,
501 U.S. at 468.
8 "Public agency" is further defined to include "the government
of a State or political subdivision thereof; any agency of * * * a State,
or a political subdivision of a State." 29 U.S.C. 203(x).
9 In the court of appeals, Judge Edmondson reasoned that "making it
specific that suits can be brought in federal court does not make it more
clear that suits against States by private parties in federal court are
in order." App., infra, 11a n.11. But that argument overlooks Congress's
specific direction that ADEA suits could be brought by "any" employee
against "any employer (including a public agency)." 29 U.S.C.
216(b), 626(b) and (c)(1).
10 The Section 5 enforcement power is not confined to categorizations that
already receive heightened scrutiny under the Equal Protection Clause. Section
5's plain text admits of no such distinction. "The fourteenth amendment
closes with the words, 'the Congress shall have power to enforce, by appropriate
legislation, the provisions of this article'-the whole of it, sir; all the
provisions of the article; every section of it." Cong. Globe, 42d Cong.,
1st Sess. App. 83 (1871) (Rep. Bingham).
11 This Court has long recognized that the "right to work for the support
of themselves and families" is a fundamental component of the liberty
guaranteed by the Fourteenth Amendment. See Smith v. Texas, 233 U.S. 630,
636, 641 (1914) ("In so far as a man is deprived of the right to labor
his liberty is restricted, his capacity to earn wages and acquire property
is lessened, and he is denied the protection which the law affords those
who are permitted to work. Liberty means more than freedom from servitude,
and the constitutional guarantee is an assurance that the citizen shall
be protected in the right to use his powers of mind and body in any lawful
calling.").
12 By contrast, the Religious Freedom Restoration Act of 1993, 42 U.S.C.
2000bb, which was at issue in Flores, "intru[ded] at every level of
government, displacing laws and prohibiting official actions of almost every
description and regardless of subject matter." Flores, 117 S. Ct. at
2170.