Revised August 29, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-30242
__________________________
JANICE KAZMIER,
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Intervenor Plaintiff-Appellee,
versus
MARY WIDMANN, individually and in her official capacity as Chief
attorney for the Louisiana Department of Social Services;
STEVEN L. MAYER, individually and in his official capacity as
General Counsel for the Louisiana Department of Social Services;
GLORIA BRYANT-BANKS, Individually and in her official capacity as
Secretary of the Louisiana Department of Social Services;
Defendants-Appellants.
_____________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_____________________________________________
August 25, 2000
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants, all officials of the Louisiana
Department of Social Services (collectively “LDSS”), appeal from
the district court’s denial of their motions to dismiss on grounds
of sovereign immunity (sometimes, “Eleventh Amendment immunity”) a
1
complaint brought against LDSS by Plaintiff-Appellant Janice
Kazmier under the Family and Medical Leave Act (“FMLA”).1 As we
conclude that the particular provisions of the FMLA that are at
issue in the instant case do not validly abrogate the State of
Louisiana’s sovereign immunity, we reverse and remand with
instructions to dismiss Kazmier’s action.
I
Facts and Proceedings
Kazmier was fired by LDSS after she took several weeks leave
during 1995: She took at least one month of leave beginning in May
of 1995 after breaking her arm in a bicycling accident, and took at
least one more week of leave at the beginning of October 1995 to
care for her terminally ill father. In addition, after breaking
her wrist later that month, Kazmier failed to return to work for
the rest of the calendar year. As a result of Kazmier’s absences,
LDSS terminated her employment on January 4, 1996.
Kazmier filed suit against LDSS in federal district court
early in 1997, alleging that LDSS’s termination of her employment
violated several provisions of the FMLA. LDSS filed a motion to
dismiss, contending that Kazmier was barred by the Eleventh
Amendment from prosecuting her suit in federal court. The United
States intervened on Kazmier’s side, arguing that the FMLA validly
abrogates the States’ Eleventh Amendment immunity. The district
court denied LDSS’s motion to dismiss, and this appeal followed.
1
29 U.S.C. §§ 2601 et seq.
2
II
Analysis
The Eleventh Amendment is rooted in the principle, imprecisely
stated in its text but implicit in the federal structure of the
Constitution, that the federal courts do not have jurisdiction to
hear suits brought by private individuals against nonconsenting
States.2 This jurisdictional bar is not, however, absolute: The
States’ sovereign immunity can be abrogated by Congress pursuant to
its enforcement power under Section 5 of the Fourteenth Amendment.3
The validity of a purported abrogation is assessed judicially by
applying a two-part test: First, “Congress must unequivocally
express[] its intent to abrogate the immunity”;4 and, second,
Congress must act “pursuant to a valid exercise of power.”5
Kazmier contends that the FMLA validly abrogates the States’
Eleventh Amendment immunity, making LDSS amenable to suit in
federal court. Conceding arguendo that in enacting the FMLA
Congress unequivocally expressed its intent to abrogate such
immunity, LDSS insists that Congress failed to effect the intended
abrogation pursuant to a valid exercise of power. Thus, the only
issue before us is whether Congress’s intent to make the pertinent
2
See, e.g., Kimel v. Florida Board of Regents, __ U.S. __,
__, 120 S.Ct. 631, 640 (2000) (“[T]he Constitution does not provide
for federal jurisdiction over suits against nonconsenting States”).
3
Id at __, 120 S.Ct. at 644.
4
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55
(1996).
5
Id.
3
provisions of the FMLA applicable to the States was validly enacted
into law pursuant to Congress’s enforcement power under Section 5
of the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment states that “[n]o State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”6 Section 5 of the Fourteenth
Amendment provides that “[t]he Congress shall have power to
enforce, by appropriate legislation, the provisions of this
article.”7 Kazmier and the United States argue that the FMLA is a
valid congressional enforcement of the Fourteenth Amendment’s
guarantee that “[n]o State shall... deny to any person within its
jurisdiction the equal protection of the laws.”
“It is for Congress in the first instance to determine whether
and what legislation is needed to secure the guarantees of the
Fourteenth Amendment, and its conclusions are entitled to much
deference.”8 The Supreme Court has noted, however, that “the same
language that serves as the basis for the affirmative grant of
congressional power also serves to limit that power.”9 “Congress
6
U.S. CONST. amend. XIV, § 1.
7
U.S. CONST. amend. XIV, § 5.
8
Kimel, __ U.S. at __, 120 S.Ct. at 644 (citations omitted).
9
Id (quotations and citations omitted).
4
cannot decree the substance of the Fourteenth Amendment’s
restriction on the States.... It has been given the power