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No. 98-1235


In the Supreme Court of the United States
OCTOBER TERM, 1998


UNITED STATES OF AMERICA, PETITIONER

AND

JOHN HUMENANSKY

v.

REGENTS OF THE UNIVERSITY OF MINNESOTA


ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH 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. 98-1235

UNITED STATES OF AMERICA, PETITIONER

AND

JOHN HUMENANSKY

v.

REGENTS OF THE UNIVERSITY OF MINNESOTA



ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH 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 judgment of the United States Court of Appeals for the Eighth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-20a) is reported at 152 F.3d 822. The opinion of the district court (App., infra, 21a-30a) is reported at 958 F. Supp. 439.
JURISDICTION
The court of appeals entered its judgment on August 11, 1998. A petition for rehearing was denied on November 3, 1998 (App., infra, 31a). 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, 32a-48a.
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).* 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. The plaintiff in this case, John Humenansky, was employed as a Senior Electron Technician by the University of Minnesota from 1969 until his termination in 1994. App., infra, 21a. He filed suit in federal district court alleging that respondent Regents of the University of Minnesota laid him off because of his age and in retaliation for filing an age-discrimination complaint. Id. at 21a-22a. Respondent moved to dismiss on the ground of Eleventh Amendment immunity. See id. at 22a. The district court granted the motion, holding that the ADEA lacks a clear textual statement evidencing Congress's intent to abrogate the States' Eleventh Amendment immunity. Id. at 23a-28a. 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 28a-30a.
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 affirmed. App., infra, 1a-20a.

The court held that the ADEA "does not reflect an unmistakably clear intent to abrogate Eleventh Amendment immunity." App., infra, 6a. The court of appeals agreed that the enforcement provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. 216(b), which are incorporated into the ADEA, 29 U.S.C. 626(b), clearly manifest an intent to abrogate. The court concluded, however, that Congress's failure directly to provide such language in the ADEA, rather than simply continuing to incorporate the Fair Labor Standards Act provision, demonstrated either that Congress had "no intent to abrogate for the ADEA," or "legislative oversight," both of which are insufficient to abrogate immunity. App., infra, 4a-6a.
The court of appeals also ruled that, even if the ADEA did contain a clear expression of congressional intent to abrogate Eleventh Amendment immunity, Congress did not have the power to effect the abrogation. App., infra, 6a-13a. The court reasoned that Congress could not prohibit age discrimination to enforce the Equal Protection Clause because this Court had never found unconstitutional any age-based classification and therefore "there has been no judicial definition of invidious * * * age discrimination." Id. at 10a. The court thus concluded that the ADEA was not legislation designed to remedy existing constitutional violations. Id. at 13a.
District Court Judge Bataillon, sitting by designation, dissented. App., infra, 13a-20a. He would have joined the numerous other courts of appeals that had sustained the ADEA's abrogation of Eleventh Amendment immunity. Id. at 13a-15a, 20a.

REASON FOR GRANTING THE PETITION
On January 25, 1999, this Court granted review in United States v. Florida Board of Regents, No. 98-796, and Kimel v. Florida Board of Regents, No. 98-791. The questions concerning the ADEA's abrogation of Eleventh Amendment immunity raised by this petition are identical to those presented in No. 98-796 and No. 98-791. Accordingly, this petition should be held pending the Court's decision in those consolidated cases.
CONCLUSION
The petition for a writ of certiorari should be held pending this Court's decision in United States v. Florida Board of Regents, No. 98-796, and Kimel v. Florida Board of Regents, No. 98-791, and disposed of in accordance with the decision in those cases.
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


FEBRUARY 1999
* 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. III 1997). 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. III 1997). 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).