No. 08-30327 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellee, v. UNIVERSITY OF LOUISIANA, MONROE, Defendant/Appellant. _______________________________________________________ On Appeal from the United States District Court for the Western District of Louisiana _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St., N.W. Washington, D.C. 20507 (202) 663-4718 STATEMENT REGARDING ORAL ARGUMENT The EEOC does not believe oral argument is warranted in this interlocutory appeal. The only issue on appeal is whether the EEOC, a federal agency, is barred by the Eleventh Amendment from suing a state defendant for violations of the Age Discrimination in Employment Act ("ADEA"). The EEOC's authority to do so is well-established, and there are no factual disputes or difficult legal issues requiring discussion at oral argument. This Court has decided the analogous issue of the federal government's ability to enforce the Americans with Disabilities Act against a state employer in United States v. Mississippi Department of Public Safety, 321 F.3d 495 (2003), and, in doing so, relied on decisions from other circuits in ADEA actions. Accordingly, this Court can resolve this appeal based on the parties' briefs. TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1 A. Course of Proceedings . . . . . . . . . . . . . . . 1 B. Statement of the Facts . . . . . . . . . . . . . . . 5 C. District Court's Decision . . . . . . . . . . . . . . 9 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . 10 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 10 ARGUMENT THE ELEVENTH AMENDMENT RELATES ONLY TO SUITS BY PRIVATE CITIZENS; IT DOES NOT AFFECT AN ACTION AGAINST A STATE BY THE FEDERAL GOVERNMENT . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . 11, 15, 18 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) . . . . . . . . . 1 EEOC v. Board of Regents of the University of Wisconsin Sys., 288 F.3d 296 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 EEOC v. Jefferson Dental Clinics, PA, 478 F.3d 690 (5th Cir. 2007) . . . . . . 19 EEOC v. Kentucky Retirement Systems, 16 Fed. Appx. 443 (6th Cir. 2001) . . . 16, 17 EEOC v. Waffle House, Inc. 534 U.S. 279, 291-92 (2002) . . . . . . . . . . . 21, 22 EEOC v. Wyoming, 460 U.S. 226 (1983) . . . . . . . . . . . . . . .11, 13, 16, 17-18 General Telephone Co. v. EEOC, 446 U.S. 318, 326 (1980) . . . . . . . . . . . . 21 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) . . . . . . . . .12 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) . . . . .2, 3, 10, 14, 16, 18 Monaco v. Mississippi, 292 U.S. 313, 329 (1934) . . . . . . . . . . . . . . . . .12 Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Reno v. Condon, 528 U.S. 141 (2000) . . . . . . . . . . . . . . . . . . . . . . 10 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . . . . . . . .11, 12, 15, 18 Smith v. City of Jackson, 544 U.S. 228 (2005) . . . . . . . . . . . . . . . . . . 3 United States v. Mississippi Department of Public Safety, 321 F.3d 495 (2003) . . . . . . . . . . . . . . . . . . 10, 11, 14, 15-16, 21 University of Alabama v. Garrett, 531 U.S. 356 (1987) . . . . . . . . . . . .11, 14 Vines and McGraw v. University of Louisiana at Monroe, 398 F.3d 700 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20 West Virginia v. United States, 479 U.S. 305, 312 n.4 (1987) . . . . . . . . . . 12 STATUTES 28 U.S.C. § 1331 . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . .1 Age Discrimination in Employment Act 29 U.S.C. § 621 . . . . . . . . . 1 29 U.S.C. § 626 . . . . . . . . . 13 29 U.S.C. § 626(a) . . . . . . . 13 29 U.S.C. § 626(b) . . . . . . . .13 U.S. Const. amend. XI . . . . . . . . .12 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The district court has jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345. The defendant has appealed from a district court order denying its motion to dismiss on the ground that it is immune from suit pursuant to the Eleventh Amendment. This Court has jurisdiction over this interlocutory appeal pursuant to the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 545-46 (1949). See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). STATEMENT OF THE ISSUE Whether the Eleventh Amendment shields a state from suit by the federal government. STATEMENT OF THE CASE A. Course of Proceedings On June 29, 2005, the Equal Employment Opportunity Commission filed this enforcement action alleging that the University of Louisiana at Monroe violated the ADEA when it denied former dean and professor Van McGraw a series of positions with ULM between 2002 and 2004 in retaliation for filing an age discrimination action challenging his 1996 termination, and because of McGraw's age. R.1 (Complaint).<1> In the earlier action McGraw alleged that ULM violated the ADEA and the Louisiana Employment Discrimination Law ("LAEDL") by prohibiting the re-employment of retirees into full-time permanent positions, by paying the plaintiffs less than younger professors, and by increasing their workload. McGraw's action was consolidated with a similar action filed by another retired dean and professor, Dwight Vines. See Vines and McGraw v. Univ. of La. at Monroe, 398 F.3d 700, 703 (5th Cir. 2005) (discussing the chronology of the case). While those actions were pending, the EEOC filed suit on January 5, 1998, alleging that the hiring restrictions on retirees violated the ADEA because they were based on age or they had a disparate impact on older ULM employees. See Complaint and Jury Demand, Civil Docket, No. CV98-0010 (W.D. La.). The Commission also alleged that retirees were paid less than non-retirees and given heavier workloads than tenure-track professors. Id. The Commission's case was consolidated with the private action. See Docket, No. CV98-0010, at 4; Vines, 398 F.3d at 703. Following the Supreme Court's decision in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), ULM moved to dismiss the parties' ADEA claims. Vines, 398 F.3d at 703. McGraw's federal claims were dismissed and his state claims were remanded to state court, while the EEOC's suit was allowed to continue.<2> See id. On July 18, 2001, the district court granted ULM's motion for summary judgment, ruling that ULM's policy did not violate the ADEA. Id. at 704. The court's decision, which predated the Supreme Court's contrary holding in Smith v. City of Jackson, 544 U.S. 228 (2005), held, inter alia, that disparate impact was not a viable theory of recovery under the ADEA. See 7/18/01 Ruling at 7. The court also ruled that ULM's legitimate, non-discriminatory reasons for paying lower salaries to retirees and for declining to renew McGraw's contract were not a pretext for age discrimination. See id. at 14-15. The EEOC filed a notice of appeal on September 17, 2001, but voluntarily dismissed the appeal on December 20, 2001. See Docket Sheet, No. CV98-0010 (W.D. La.); Vines, 398 F.3d at 704. Between 2002 and 2004, McGraw attempted to be rehired as an associate dean at the business school and as a professor, but was not selected for any of the positions he sought. McGraw filed a charge with the EEOC alleging retaliation and age discrimination in 2004. The EEOC filed this action on June 29, 2005, alleging that ULM refused to hire McGraw because of his earlier lawsuit and/or because of his age. The complaint seeks, inter alia, an injunction barring ULM from discriminating against retired employees and engaging in other forms of discrimination against its older employees, instatement of McGraw in a position with ULM, as well as back pay and liquidated damages. See R.14 (First Amended Complaint at 5-6).<3> On September 10, 2007, ULM filed a motion for summary judgment and moved to dismiss the action based, inter alia, on its contention that the Eleventh Amendment bars the suit. See R.33 (Def. Mem. in Support of Motion to Dismiss and Motion for Summary Judgment at 5-10) (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)). The district court adopted the magistrate judge's recommendation that the motion to dismiss be denied on February 25, 2008. R.61. On March 26, 2008, ULM filed with the district court both a notice of appeal and a motion for leave to appeal, as well as a request that the district court stay proceedings pending the appeal. R.66. The EEOC filed a motion to dismiss the appeal pursuant to Fifth Circuit Rule 42.2 on the grounds that the appeal was frivolous given that this Court has conclusively rejected the argument the defendant offered, or in the alternative, that the court of appeals summarily affirm the district court's decision. This Court denied the EEOC's motion on June 11, 2008. B. Statement of the Facts Dr. Van McGraw worked for ULM for nearly 40 years beginning in 1959. He began his academic career as an instructor of business administration, then became a professor of management and the head of the College of Business Administration ("CBA")'s Department of Management and Marketing ("DMM"). R.30-21 (Vita). He served as a tenured professor of management and as the Dean of the CBA beginning in 1976. Id. McGraw retired as Dean in 1989, after 30 years of service with ULM. Id. Upon his retirement, he was immediately rehired as a professor of management. Id. In 1996, ULM terminated McGraw's contract to teach for the following year pursuant to a new policy under which retirees could not be re-hired as full-time, permanent employees, absent permission from the Board. R.30-7 (Loudon 11/8/04 Statement at 1); see also Complaint at 4, Civil Docket, No. CV98-0010 (W.D. La.). Both McGraw and the Commission unsuccessfully challenged this policy and McGraw's termination, as discussed above. Because McGraw was eager to be back in the classroom, he taught as a volunteer adjunct professor in the spring of 2002. R.30-21 (Vita); R.44-14 (McGraw Decl. 17). McGraw stated that he was told by DMM Head David Loudon that, according to CBA Interim Dean James Hood, he was not being paid for his teaching work that semester because of his age discrimination lawsuit against the University. Id. Beginning in the fall of 2002, more than a year after the EEOC's ADEA suit had been dismissed, McGraw was denied re-employment with ULM for six job opportunities.<4> Three of those opportunities were as Associate Dean of the CBA. When McGraw interviewed with Kenneth Clow, the Dean of the CBA, Clow told McGraw that he was qualified for the position. R.30-4 (Clow Dep. at 82, 84). Dean Clow testified that ULM's Provost and Vice President for Academic Affairs, Stephen Richters, told him after McGraw's interview that ULM would not hire McGraw for the Associate Dean position because of the age discrimination suit McGraw had filed after his 1996 termination. R.30-4 (Clow Dep. at 225-26); see also id. (Clow Dep. at 62) ("It was because of the current legal situation, that hiring McGraw wasn't a good idea at this time, something of that nature."); id. (Clow Dep. at 104-05) (agreeing that he was certain that Richters was referring to McGraw's litigation against the University when Richters told him it wasn't a good idea to hire McGraw); id. (Clow Dep. at 189) (stating that he told Loudon that the University was not going to hire him and "he really wasn't a viable candidate"). McGraw was not selected for the Associate Dean position; instead it was given to Tammy Parker in October 2002. R.44-14 (McGraw Decl. 13). In the spring of 2003, Parker resigned and was replaced by John Duncan. R.30-4 (Clow Dep. at 107-09). Clow testified that McGraw was not considered to replace Parker because Provost Richters would not approve hiring him "because of the lawsuit." Id. (Clow Dep. at 128). Clow determined that McGraw was not a "feasible candidate" for re-employment with ULM based on Richters' comment. Id. (Clow Dep. at 99-100). When Duncan withdrew his acceptance of the position to take a job elsewhere, Donna Luse was selected and began the Associate Dean position on July 1, 2003. Id. (Clow Dep. at 159-61, 167). McGraw was not considered for the position. Id. (Clow Dep. at 127-29). Prior to Luse's selection, the head of the CBA's DMM, David Loudon, urged Clow to hire McGraw for the Associate Dean position. R.30-7 (Loudon 11/8/04 Statement at 2). Loudon stated that during a meeting about the position, Clow "announced to the group [the CBA Executive Committee] that the administration was not going to hire McGraw because of the lawsuit" and was "relaying the decision from a conversation he had with Provost Richters." Id. Also in the spring of 2003, McGraw sought a professorship in the CBA's DMM. R.30-7 (Loudon 11/8/04 Statement at 2). Kathryn Jones was hired instead, despite the fact that Department Head Loudon wanted to hire McGraw. R.30-10 (Loudon 9/7/07 Decl. 43, 50-54). Dean Clow advised Loudon that ULM would not hire McGraw "because of the lawsuit." Id. (Loudon 9/7/07 Decl. 43). Loudon e-mailed Provost Richters requesting permission to hire McGraw as a non- tenured professor; Richters never responded. Id. (Loudon 9/7/07 Decl. 44). McGraw also lost a second teaching slot for a 2003 instructor position to James Greenlaw, a retiree who lacked a Ph.D and whom Loudon deemed unqualified because he "had virtually no intellectual contributions." Id. (Loudon 9/7/07 Decl. 55-59). Loudon stated that he hired Greenlaw "after being denied permission to select McGraw." Id. (Loudon 9/7/07 Decl. 55). Finally, when Greenlaw resigned in the spring of 2004, McGraw was not hired to replace him. Loudon stated that he sought permission from Dean Clow to hire McGraw, but Clow "once again told me that the Administration would not allow it . . . ." Id. (Loudon 9/7/07 Decl. 75); see also id. ("[T]he clear contextual implication to me was that ULM would not hire McGraw because of the lawsuit.").<5> C. District Court's Decision On November 2, 2007, the magistrate judge recommended that ULM's motion to dismiss on Eleventh Amendment grounds be denied. See R.57 (Report and Recommendation at 3-4). The magistrate judge concluded that this Court's decision in United States v. Mississippi Department of Public Safety, 321 F.3d 495, 499 (5th Cir. 2003), which rejected an Eleventh Amendment immunity challenge to a suit brought by the federal government under the Americans with Disabilities Act, is dispositive. Id. at 3. The magistrate judge noted that, although Mississippi Department of Public Safety was an ADA action, this Court relied on decisions of the Sixth and Seventh Circuits holding that the Eleventh Amendment does not bar ADEA suits brought by the EEOC against a state. Id. at 3-4 (citing EEOC v. Bd. of Regents of Univ. of Wis., 288 F.3d 296 (7th Cir. 2002); EEOC v. Ky. Ret. Sys., 16 Fed. Appx. 443 (6th Cir. 2001)). According to the magistrate judge, because "there is every reason to believe that the Fifth Circuit would rule the same way on ADEA claims as it had in ADA claims . . . [, the] defendant's argument necessarily fails." Id. at 4. The district court adopted the recommendation denying the defendant's motion to dismiss in its February 25, 2008, order. See R.62 (Ruling at 2). STANDARD OF REVIEW The denial of a motion to dismiss for failure to state a claim on purely legal grounds is reviewed de novo. United States v. Miss. Dep't of Pub. Safety, 321 F.3d 495, 498 (5th Cir. 2003). In deciding whether the EEOC's suit to enforce the ADEA against ULM contravenes the Eleventh Amendment, this Court must "begin with the time-honored presumption that the [statute in question] is a 'constitutional exercise of legislative power.'" Reno v. Condon, 528 U.S. 141, 148 (2000) (quoting Close v. Glenwood Cemetery, 107 U.S. 466 (1883)). SUMMARY OF ARGUMENT The Eleventh Amendment protects a state from private suits for damages without its consent. The federal government, in contrast, may bring suit in federal court against a state to enforce the state's compliance with federal law. The EEOC is the federal agency charged by Congress to enforce the ADEA against state employers. It has long been settled that the prohibitions of the ADEA extend to state employers. Accordingly, the Eleventh Amendment poses no obstacle to the Commission's suit to require ULM to comply with the ADEA's prohibition against retaliation and age discrimination in hiring. Nothing in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), alters the fundamental principle that states have no sovereign immunity as against the federal government. Kimel explicitly limits its holding to suits by private individuals and reaffirmed the holding in EEOC v. Wyoming, 460 U.S. 226 (1983), that state and local government employers are covered by the ADEA. The Supreme Court has consistently recognized that Eleventh Amendment immunity does not extend to the federal government in its decisions in University of Alabama v. Garrett, 531 U.S. 356 (1987); Alden v. Maine, 527 U.S. 706 (1999); and Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). This Court recognized this principle in United States v. Mississippi Department of Public Safety, 321 F.3d 498 (5th Cir. 2003), when it held that the federal government could sue a state for violations of the Americans with Disabilities Act, and relied upon two other circuit court decisions reaching the same conclusion in ADEA cases. ULM surmises that the Supreme Court is poised to overrule EEOC v. Wyoming, because it was a 5-4 decision. But there is no reason to believe the Supreme Court has any plan to revisit Wyoming given that it reaffirmed its basic holding in Kimel. Moreover, Wyoming never mentions the Eleventh Amendment, as the case involved only a Tenth Amendment challenge. The cases ULM suggest cast its holding in doubt-Seminole Tribe and Kimel-only apply to suits brought by private parties, not the federal government. ULM also relies upon two decisions of this court that involve attempts by parties to relitigate ADEA claims that were resolved in earlier proceedings. Neither of these cases has any bearing on the issue in this appeal-whether the Eleventh Amendment precludes the federal government from enforcing the ADEA against a state employer. ARGUMENT THE ELEVENTH AMENDMENT RELATES ONLY TO SUITS BY PRIVATE CITIZENS; IT DOES NOT AFFECT AN ACTION AGAINST A STATE BY THE FEDERAL GOVERNMENT. The Eleventh Amendment protects a state from private suits for damages without its consent. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996) ("Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.").<6> Notwithstanding the states' immunity from private suits, however, "[t]he Federal Government can bring suit in federal court against a State" as a method "of ensuring the States' compliance with federal law." Id. at 71 n.14. The Supreme Court has long "held dispositively that States retain no sovereign immunity as against the Federal Government." West Virginia v. United States, 479 U.S. 305, 312 n.4 (1987); see also Monaco v. Mississippi, 292 U.S. 313, 329 (1934) (federal jurisdiction over "a suit by the United States against a State, albeit without the consent of the latter . . . is inherent in the constitutional plan") (citing cases). The Eleventh Amendment thus poses no impediment to the EEOC's suit to require ULM to comply with the ADEA's prohibition against retaliation and age discrimination in hiring. The EEOC is the federal agency charged by Congress to enforce the ADEA's prohibition against discriminatory employment practices based on age. See 29 U.S.C. § 626; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). The EEOC has authority to investigate alleged age discrimination, 29 U.S.C. § 626(a), and must "attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance" with statutory requirements "through informal methods of conciliation, conference, or persuasion." 29 U.S.C. § 626(b). Where such efforts fail, the EEOC is authorized to bring a civil enforcement action to obtain "such legal or equitable relief as may be appropriate to effectuate the purposes" of the statute, "including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability" for monetary relief in "[a]mounts owing to a person as a result of a violation." Id. It has long been settled that "[t]he extension of the ADEA to cover state and local governments . . . was a valid exercise of Congress's powers under the Commerce Clause." EEOC v. Wyoming, 460 U.S. 226, 243 (1983). As this Court stated in Mississippi Department of Public Safety, "the federal government always has a real and substantial federal interest in ensuring the states' compliance with federal law." 321 F.3d at 499 (emphasis in original). Nonetheless, ULM argues that the Eleventh Amendment bars this ADEA enforcement action brought by the federal government. Contrary to ULM's contention, the Supreme Court's decision in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), in no way alters the fundamental principle that states have no sovereign immunity against suits brought by the federal government to enforce federal law. The Kimel decision itself explicitly limits its holding to suits by private individuals. See 528 U.S. at 91 ("We hold only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private individuals.") (emphasis added). Because the EEOC is the federal agency charged by Congress to enforce the ADEA against private and state employers, ULM cannot assert Eleventh Amendment immunity as a defense to this action. The Supreme Court has consistently recognized that Eleventh Amendment immunity does not extend to suits by the federal government. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (1987) (Court's holding that Congress did not validly abrogate the States' Eleventh Amendment immunity from suit by private individuals for money damages under the ADA does not affect the ability of the United States to enforce the ADA in suits for money damages); Alden v. Maine, 527 U.S. 706, 755-56 (1999) (while upholding Maine's assertion of Eleventh Amendment immunity to defeat a private suit under the Fair Labor Standards Act, Court noted that a "suit which is commenced and prosecuted against a State in the name of the United States . . . differs in kind from the suit of an individual" because "[i]n ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government."); Seminole Tribe, 517 U.S. at 71 n. 14 (noting that the federal government can bring suit in federal court against a State as a method of ensuring the States' compliance with federal law). This Court recognized this principle in Mississippi Department of Public Safety, 321 F.3d at 498 ("While the Eleventh Amendment bars suits by individuals against a state, the Supreme Court has long recognized that, '[i]n ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government.'") (quoting Alden v. Maine, 527 U.S. at 755-56). Mississippi Department of Public Safety was an ADA case, but there is no basis for applying a different rule to suits under the ADEA. Indeed, as the magistrate judge recognized, in Mississippi Dep't of Pub. Safety, this Court relied on decisions in two ADEA cases in other circuits to support its holding that the Eleventh Amendment did not bar the EEOC from pursuing a suit for damages under the ADA. See 321 F.3d at 499 n.3 ("The Sixth and Seventh Circuits have rejected nearly identical sovereign immunity challenges to suits brought by the EEOC pursuant to the Age Discrimination in Employment Act.") (citing EEOC v. Bd. of Regents of the Univ. of Wisc. Sys., 288 F.3d 296 (7th Cir. 2002), and EEOC v. Kentucky Ret. Sys., 16 Fed. Appx. 443 (6th Cir. 2001)). ULM offers two responses to this uniform body of precedent squarely rejecting its position. Both miss the mark. ULM first suggests that the Supreme Court's decision in EEOC v. Wyoming, 460 U.S. 226 (1983), holding that the ADEA extends to state employers is no longer good law. ULM emphasizes that the case was decided on a 5-4 vote, and predated Seminole Tribe and Kimel. ULM spends four pages of its brief discussing the dissent, and contends that the dissent "specifically held that the ADEA should be deemed unconstitutional as applied to the States." See ULM Br. at 7-11. Wyoming is still good law. In that case, the Supreme Court resolved a Tenth Amendment challenge to the ADEA, holding that "[t]he extension of the ADEA to cover state and local governments . . . was a valid exercise of Congress's powers under the Commerce Clause." 460 U.S. at 243. There is no reason to think the Supreme Court will revisit that conclusion because Kimel confirmed Wyoming's holding. See Kimel, 528 U.S. 78 ("In EEOC v. Wyoming, we held that the ADEA constitutes a valid exercise of Congress' power '[t]o regulate Commerce . . . among the several States,' Art. I, § 8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment."); see also Kentucky Ret., 16 Fed.Appx. at 6 (rejecting the defendants' argument that because Wyoming's Tenth Amendment analysis was based on the "traditional government functions" standard for addressing Tenth Amendment immunity claims articulated in National League of Cities v. Usery, 426 U.S. 833 (1976), and expressly overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 531 (1985), Wyoming's validity was in question; court held that "Garcia merely reinforced the Court's determination in Wyoming that Congress is constitutionally authorized to require state employers to abide by the ADEA"). Moreover, because Wyoming did not discuss the Eleventh Amendment, it is not germane to the immunity issue before this Court. ULM attributes significance to the fact that on the Westlaw database, a red flag appears on the Wyoming decision, which, in ULM's view "indicates that issues in fact have amended and/or modified by the decision [sic] occurring within the court system after its release." ULM Br. at 11. We see two explanations for the red flag, neither of which has any bearing on the federal government's ability to sue a state employer under the ADEA. First, Wyoming was an ADEA challenge to Wyoming's mandatory retirement policy for game wardens, and, after the Supreme Court's decision, Congress amended the ADEA to allow an exemption from the ADEA for some age limits caps for state and local law enforcement personnel. See 29 U.S.C. § 623(i). Additionally, Seminole Tribe overruled EEOC v. Wyoming to the extent the Court held that Congress could abrogate the States' sovereign immunity pursuant to its Article I powers. See Kimel, 528 U.S. at 78. The effect of the holding in Seminole Tribe was to leave § 5 of the Fourteenth Amendment as the sole source of federal power to abrogate the states' Eleventh Amendment immunity. See Seminole Tribe, 517 U.S. at 59; Alden, 527 U.S. at 756 ("Congress may authorize private suits against nonconsenting States" only by acting "pursuant to its § 5 enforcement power" to enact "appropriate legislation to enforce [the Fourteenth] Amendment"). Thus, while the Court in Kimel confirmed its earlier holding in Wyoming that the application of the ADEA to state employers is constitutional under the Tenth Amendment, the Court's decision in Seminole Tribe required the Court to answer the question left open in Wyoming: "whether the Act also could be supported by Congress' power under § 5 of the Fourteenth Amendment." Kimel, 528 U.S. at 78. "[I]f the ADEA rests solely on Congress' Article I commerce power," the Kimel Court explained, "the private petitioners . . . cannot maintain their suits against their state employers." Id. However, as explained supra at 14-16, this has no bearing on this action brought by the federal government against a state; Seminole Tribe and Kimel only apply to suits brought by private parties. ULM also relies on two decisions of this court declining to permit a party to re-litigate a claim already resolved in another judicial forum. These decisions have no bearing on this case, which alleges claims that have not previously been litigated by the EEOC or by McGraw. ULM argues that "courts have barred 'make whole' relief in certain circumstances" where the EEOC was the plaintiff. ULM Br. at 11-12 (citing EEOC v. Jefferson Dental Clinics, PA, 478 F.3d 690 (5th Cir. 2007)). ULM's reliance on Jefferson Dental is misplaced. Since the defendant in Jefferson Dental was a private employer, this Court's holding that the EEOC's action could not proceed was manifestly not based on the Eleventh Amendment. Instead, as this Court explained, it was based on the peculiar facts of that case where the EEOC brought a Title VII sexual harassment action seeking relief for individuals who had already brought and lost their own actions in state court challenging the same conduct. 478 F.3d at 699 (stating that allowing the EEOC's suit to proceed under those circumstances would give the plaintiffs "two chances to receive make-whole relief"). That decision has no bearing on the question ULM seeks to raise here- whether the Eleventh Amendment precludes the EEOC's ADEA suit. This case does not present a situation in which a set of discrimination victims are trying to obtain relief through an EEOC case litigated in the public interest when they had already lost in another forum. McGraw's non-selection for the series of positions he sought from 2002 to 2004 has not been the subject of another action and post- dated the 2001 dismissal of the Commission's prior suit challenging his termination. ULM also suggests that the EEOC and McGraw are in privity, which "should preclude proceeding on single victim relief fro[sic] claims which [as] further discussed herein are in fact barred by the individual by both court order and law," and relies on this Court's decision in Vines v. University of Louisiana at Monroe, 398 F.3d 700, 707 (5th Cir. 2005), which involved McGraw's private challenge to his 1996 termination. See ULM Br. at 13. In Vines, this Court reversed the district court's ruling that McGraw and Vines could proceed with their state discrimination suit challenging their terminations and ULM's policy restricting the rehire of retirees despite the fact that the EEOC unsuccessfully challenged the same conduct in its federal suit. 398 F.3d at 712. Although the Court ruled that "the EEOC is not always to be considered the representative of individuals on whose behalf it brings an ADEA action," in this case "the EEOC did represent Vines and McGraw for res judicata and collateral estoppel purposes in the federal case brought against ULM." Id. at 706-07. ULM apparently reads Vines to hold that the EEOC and the individuals for whom it seeks relief are always in privity, so that an EEOC enforcement action seeking relief for a private individual is not really a suit by the federal government. ULM's suggestion that an EEOC enforcement action is functionally equivalent to a private suit cannot be reconciled with the Supreme Court's decision in EEOC v. Waffle House, Inc. 534 U.S. 279, 291-92 (2002), which holds that an EEOC enforcement action seeking monetary relief for a single individual is, nonetheless, a government suit brought to vindicate the public interest. The Court stated, "we are persuaded that . . . whenever the EEOC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief." Id. at 295-96; see also General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) ("the EEOC is not merely a proxy for the victims of discrimination") (Title VII case). This Court recognized this principle in Mississippi Department of Public Safety, 321 F.3d at 499 ("'The [ADA] clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.'") (quoting Waffle House, 534 U.S. at 291-92)). See also id. (fact that employee could not sue the state employer under the ADA under the Eleventh Amendment "in no way diminishes the United States' interest in the action or the authority of the United States to bring suit against the [defendant] for the benefit of the public generally and for [the charging party]'s benefit specifically"). ULM cites statements in Waffle House suggesting that the EEOC's recovery on behalf of a charging party could be limited by the individual's recovery elsewhere. See 534 U.S. at 297 ("As we have noted, it 'goes without saying that the courts can and should preclude double recovery by an individual.'") (quoting General Tel., 446 U.S. at 333). However, this possibility has no bearing on the Eleventh Amendment issue in this case, particularly because there has been no prior adjudication of the claims presented in this case. Furthermore, the EEOC is seeking broad injunctive relief in this action, as well as monetary relief and reinstatement for McGraw. See R.14 (First Amended Complaint and Jury Demand at 5-6). Neither Vines nor Jefferson Dental, nor any case that we are aware of, holds that the EEOC can be precluded by the Eleventh Amendment from litigating a federal enforcement action that has not been litigated elsewhere.<7> CONCLUSION For the foregoing reasons, the district court's ruling should be affirmed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,359 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. _________________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 Dated: July 25, 2008 CERTIFICATE OF SERVICE I certify that two paper copies and one PDF version of the foregoing brief was sent this 25th day of July, 2008, by overnight mail, postage prepaid, to the following counsel of record: Linda Law Clark Winston G. DeCuir DECUIR CLARK & ADAMS 732 North Blvd Baton Rouge, LA 70802 ________________________________ Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 *********************************************************************** <> <1> The Commission filed an Amended Complaint on March 29, 2006, substituting the Board of Supervisors for the University as the defendant. See R.14. <2> The district court rejected ULM's argument that the Eleventh Amendment barred the EEOC's ADEA suit against the University after Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). See No. CV97-0873, 7/18/01 Ruling at 4. ULM did not appeal from this ruling. <3> McGraw also filed a suit challenging ULM's refusal to rehire him between 2002 and 2004 under state law in Louisiana's Fourth Judicial District Court. That action, No. 05-0772, is proceeding to trial. <4> It is unclear from the record the status of ULM's policy restricting the rehire of retirees. ULM has never in this litigation offered McGraw's retiree status as a reason for his rejection for the positions he sought. Additionally, James Greenlaw, another retiree, was selected instead of McGraw for one of the teaching positions open in 2003. R.30-10 (Loudon 9/7/07 Decl. 55). Dean Clow testified that he had no knowledge of the CBA prohibiting the rehire of a retiree. See R.30- 4 (Clow Dep. at 212). The CBA's current dean, Ronald Berry, also testified that he was not aware that ULM had a policy restricting the hire of retirees. See R.30- 23 (Berry Dep. at 91). <5> Loudon was removed as Department Head of the DMM in August 2004, having served in that position for 24 years. R.30-12 (Loudon Decl. 78). Loudon was not given an explanation for his demotion, but stated that Clow, who was stepping down as CBA Dean, told him that Richters suspected Loudon had told McGraw that he was not selected for the positions he sought because of his lawsuit. R.30-7 (Loudon 11/8/04 Statement at 3). <6> 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." U.S. Const. amend. XI. <7> ULM spends several pages of its brief arguing that McGraw's state court suit is barred by res judicata or "prescription." ULM Br. at 15-17. It is not at all clear what ULM is contending, but in any event, the viability of McGraw's pending state court suit alleging only violations of state law has no bearing on any issue before this Court or the district court.