IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2008
No. 07-10660
Charles R. Fulbruge III
Clerk
ROBERT T NELSON
Plaintiff-Appellant
v.
UNIVERSITY OF TEXAS at Dallas; DAVID E DANIEL, as Administrative
Head of the University of Texas at Dallas; KAREN M JARRELL,
Individually; VIVIAN RUTLEGE, Individually
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-1741
Before SMITH and PRADO, Circuit Judges, and YEAKEL, District Judge.*
PRADO, Circuit Judge:
In this case, we must decide whether a claim for reinstatement under the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54, is sufficient to
bring a case within the Ex parte Young exception to Eleventh Amendment
sovereign immunity. We conclude that it is and therefore REVERSE the
judgment of the district court and REMAND for further proceedings consistent
with this opinion.
*
District Judge of the Western District of Texas, sitting by designation.
No. 07-10660
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellant Robert Nelson (“Nelson”) was employed by Defendant-
Appellee the University of Texas at Dallas (“UTD”) for approximately one year.
After being severely injured in a car accident and suffering the suicide of his son,
Nelson went on FMLA leave on April 25, 2005. Nelson’s doctor informed UTD
that Nelson would need intermittent leave for at least four to six weeks in order
to fully recover. UTD approved the request for leave, subject to its standard
FMLA policies, which require notice of the timing and duration of the leave. On
June 7, 2005, and prior to the expiration of the twelve weeks of leave guaranteed
by the FMLA, UTD terminated Nelson for absenteeism when he did not call in
or report to work for three consecutive days. Despite Nelson’s request for
reinstatement, UTD refused to reinstate him.
As a result, Nelson filed suit against UTD on August 29, 2005, for
violations of the FMLA, seeking both damages and reinstatement. Nelson soon
amended his complaint to include FMLA claims against Defendants-Appellees
David Daniel (“Daniel”) as the administrative head of UTD, Karen Jarrell
(“Jarrell”), and Vivian Rutlege (“Rutlege”).1 All of the defendants filed motions
to dismiss. The district court granted the motions brought by UTD, Jarrell, and
Rutlege, holding that UTD was protected by Eleventh Amendment immunity
and that Jarrell and Rutlege were not “employers” under the FMLA. Nelson has
not appealed the dismissal of these parties. However, because Nelson sued
Daniel in his official capacity, the district court did not grant Daniel’s motion to
dismiss at that time, given that the motion was premised on a suit against
Daniel in his individual capacity.
Daniel then filed a motion to dismiss the suit brought against him in his
official capacity on the ground of Eleventh Amendment immunity, which the
1
Daniel is the President of UTD. Jarrell and Rutlege are lower level employees who
interacted with Nelson concerning his FMLA leave.
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No. 07-10660
district court granted. The district court ruled that Nelson’s request for
reinstatement did not fall within the Ex parte Young exception to Eleventh
Amendment immunity because Nelson failed to allege a “continuing violation”
of federal law. The district court reaffirmed its ruling when it denied Nelson’s
motion to vacate the judgment. Nelson timely appealed the dismissal of his suit
against Daniel.
We have jurisdiction pursuant to 28 U.S.C. § 1291, as a final judgment has
been entered. We review rulings on motions to dismiss de novo. Kennedy v.
Chase Manhattan Bank USA, N.A., 369 F.3d 833, 839 (5th Cir. 2004).
II. DISCUSSION
Because Nelson sued Daniel in his official capacity as head of UTD,
Nelson’s suit is treated as one against the State of Texas which, absent an
exception to immunity, is barred by the Eleventh Amendment.2 See McCarthy
ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (“[T]he principle of
state-sovereign immunity generally precludes actions against state officers in
their official capacities . . . .”). To avoid Eleventh Amendment immunity, Nelson
relies on the Supreme Court’s decision in Ex parte Young, 209 U.S. 123 (1908),
which created an exception to Eleventh Amendment immunity for claims for
prospective relief against state officials who have been sued in their official
capacities. Thus, the sole question in this appeal is whether Nelson’s request for
reinstatement is sufficient to invoke the Ex parte Young exception to Eleventh
Amendment immunity.
2
The Supreme Court has noted that state sovereign immunity is broader than that
described by the Eleventh Amendment; thus, referring to “sovereign immunity” as “Eleventh
Amendment immunity” is not always accurate. Alden v. Maine, 527 U.S. 706, 713 (1999). For
our purposes, however, there is no need to distinguish between the two, and we will use the
terms interchangeably.
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No. 07-10660
A. The FMLA and Sovereign Immunity
Before reaching the merits of this appeal, we first pause to make clear that
Nelson’s FMLA claim is, in fact, subject to an Eleventh Amendment immunity
defense. In pertinent part, the FMLA guarantees eligible employees twelve
workweeks of leave during any twelve month period for the following reasons:
(A) Because of the birth of a son or daughter of the employee and in
order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee
for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of
the employee, if such spouse, son, daughter, or parent has a serious
health condition.
(D) Because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.
29 U.S.C. § 2612(a)(1).3 In this case, Nelson claims he was entitled to leave
pursuant to subsection D.
This court in Kazmier v. Widmann declared that the Eleventh Amendment
immunized states from suits for money damages brought under subsections C
and D of § 2612(a)(1). 225 F.3d 519, 526-29 (5th Cir. 2000). Several years later,
however, the Supreme Court ruled that Congress had validly exercised its power
under § 5 of the Fourteenth Amendment to abrogate the states’ Eleventh
Amendment immunity with respect to subsection C by enacting it to combat
historic gender discrimination. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.
721, 735 (2003) (referencing “the States’ record of unconstitutional participation
in, and fostering of, gender-based discrimination in the administration of leave
benefits”). The Court specifically noted evidence that the gender gap regarding
leave was due to “the pervasive sex-role stereotype that caring for family
3
Since this case was filed, Congress has added subsection E to § 2612(a)(1), which
provides for leave due to exigencies arising from the fact that the spouse, son, daughter, or
parents of the employee is on active duty in the Armed Forces.
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No. 07-10660
members is women’s work.” Id. at 731. Because Hibbs concerned only
subsection C of § 2612(a)(1), the Court made no comment on whether Congress
validly abrogated sovereign immunity under subsection D.
Since that time, the Sixth, Seventh, and Tenth Circuits have recognized
that, despite the ruling in Hibbs, states may still assert an Eleventh Amendment
immunity defense to claims brought pursuant to subsection D. Toeller v. Wis.
Dep’t of Corr., 461 F.3d 871, 877-80 (7th Cir. 2006); Touvell v. Ohio Dep’t of
Mental Retardation & Developmental Disabilities, 422 F.3d 392, 400-05 (6th Cir.
2005); Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1164-65 (10th
Cir. 2003). The rationale behind these decisions is that subsection D, which
concerns leave for purposes of self-care as opposed to the care of family members,
does not appear to be in response to any nationwide history of gender
discrimination that would permit Congress to act under § 5 of the Fourteenth
Amendment. See, e.g., Touvell, 422 F.3d at 400-05; Brockman, 342 F.3d at 1164.
Therefore, those circuits concluded that Congress lacked the power to
legislatively remove the states’ immunity under subsection D. Toeller, 461 F.3d
at 879-80; Touvell, 422 F.3d at 405; Brockman, 342 F.3d at 1165.
Although neither party to this appeal challenges whether sovereign
immunity still protects states from liability for suits brought under subsection
D, we agree with the rationale of the Sixth, Seventh, and Tenth Circuits that the
Supreme Court’s ruling in Hibbs applies only to subsection C. Therefore, this
court’s decision in Kazmier still remains the law of this circuit with respect to
subsection D. Consequently, Daniel may assert the defense of sovereign
immunity in Nelson’s suit against him in his official capacity under subsection
D.
B. Reinstatement and Ex parte Young
Because the Eleventh Amendment bars suits against states for money
damages incurred as a result of violating 29 U.S.C. § 2612(a)(1)(D), we must
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No. 07-10660
dismiss Nelson’s claim against Daniel in his official capacity unless Nelson can
demonstrate an exception to immunity. As noted above, Nelson relies on the
exception to Eleventh Amendment immunity created by the Supreme Court in
Ex parte Young, 209 U.S. 123 (1908). Pursuant to the Ex parte Young exception,
the Eleventh Amendment is not a bar to suits for prospective relief against a
state employee acting in his official capacity. Stroman Realty, Inc. v. Wercinski,
513 F.3d 476, 482 (5th Cir. 2008), petition for cert. filed, 76 U.S.L.W. 3611 (U.S.
May 5, 2008) (No. 07-1387). Thus, “prospective injunctive or declaratory relief
against a state [official] is permitted . . . but retrospective relief in the form of a
money judgment in compensation for past wrongs . . . is barred.” Brennan v.
Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988). Nelson argues that his request for
reinstatement is the sort of prospective relief that is permitted by the Ex parte
Young doctrine.
As shown by Nelson, this circuit has always treated Ex parte Young as an
appropriate vehicle for pursuing reinstatement to a previous job position. In
Warnock v. Pecos County, we considered a district court’s dismissal of a § 1983
action on the basis of Eleventh Amendment immunity. 88 F.3d 341 (5th Cir.
1996). There, the plaintiff sought damages, reinstatement, and attorneys’ fees
from two state judges when they failed to reappoint her to a position that she
had previously held. Id. at 343. We agreed that the suit for damages was barred
by the Eleventh Amendment, but held that the claim for reinstatement could go
forward because it was a claim for prospective relief. Id. Specifically, we stated,
Plaintiff’s claim for prospective relief (reinstatement), however, is
not barred by sovereign immunity. The Eleventh Amendment does
not protect state officials from claims for prospective relief when it
is alleged that the state officials acted in violation of federal law. Ex
parte Young, 209 U.S. 123, 155-56, 28 S. Ct. 441, 452, 52 L. Ed. 714
(1908); Edelman v. Jordan, 415 U.S. 651, 664, 94 S. Ct. 1347, 1356,
39 L. Ed.2d 662 (1974); Brennan v. Stewart, 834 F.2d 1248, 1252
(5th Cir. 1988).
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No. 07-10660
Id. Thus, we clearly held that a claim for reinstatement was cognizable under
Ex parte Young.
We followed Warnock in Sternadel v. Scott, No. 00-50106, 2001 WL 563628
(5th Cir. May 7, 2001), and held that a motion to dismiss on the basis of
Eleventh Amendment immunity should not have been granted when the plaintiff
sought the prospective relief of reinstatement. Id. at *2. Similarly, in Meekins
v. Foster, No. 99-30583, 2000 WL 423356 (5th Cir. Apr. 3, 2000), we noted (and
the parties conceded) that reinstatement “would qualify as acceptable injunctive
relief” for Ex parte Young purposes. Id. at *2.
Ours is not the only court to reach such a conclusion, as almost every
circuit court has reached the same result. See State Employees Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 96-98 (2d Cir. 2007); Meiners v. Univ. of
Kan., 359 F.3d 1222, 1232-33 (10th Cir. 2004); Koslow v. Pennsylvania, 302 F.3d
161, 179 (3d Cir. 2002); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir.
2002); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 840-42 (9th Cir.
1997); Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996); Coakley v.
Welch, 877 F.2d 304, 307 n.2 (4th Cir. 1989); Elliott v. Hinds, 786 F.2d 298, 302
(7th Cir. 1986). Therefore, the great weight of case authority clearly supports
treating reinstatement as an acceptable form of prospective relief that may be
sought through Ex parte Young.
C. Daniel’s Arguments
In his argument against application of Ex parte Young in this case, Daniel
asserts that the doctrine requires more than a simple request for prospective
relief. Rather, relying on recent Supreme Court precedent, Daniel argues that
a plaintiff must also allege a “continuing” or “ongoing” violation of federal law
before the Ex parte Young exception can be met.
In one of its most recent descriptions of the Ex parte Young doctrine, the
Supreme Court said that “a court need only conduct a straightforward inquiry
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No. 07-10660
into whether [the] complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks
omitted and emphasis added). Similarly, the Court has stated that “Young also
held that the Eleventh Amendment does not prevent federal courts from
granting prospective injunctive relief to prevent a continuing violation of federal
law.” Green v. Mansour, 474 U.S. 64, 68 (1985) (emphasis added); see Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996) (“[W]e have often found federal
jurisdiction over a suit against a state official when that suit seeks only
prospective injunctive relief in order to ‘end a continuing violation of federal
law.’”).
In light of these statements, Daniel asserts that Nelson’s termination and
UTD’s refusal to reinstate him do not constitute a “continuing violation”
sufficient to sustain a claim under Ex parte Young. In making this argument,
Daniel relies upon Supreme Court precedent from employment discrimination
cases which hold that termination is a discrete act. See, e.g., Ledbetter v.
Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2169 (2007) (listing termination
and refusal to hire as discrete acts); Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114 (2002) (same). “A discrete retaliatory or discriminatory act
‘occurred’ on the day that it ‘happened.’” Morgan, 536 U.S. at 110. From this,
Daniel concludes that Nelson’s termination was a discrete act that presents no
continuing violation of federal law, meaning that Ex parte Young is not
applicable.
Daniel’s position is not unreasonable, but we are confronted with years of
caselaw to the contrary. All of the opinions cited above concerning
reinstatement and Ex parte Young were issued after the Supreme Court began
using the continuing violation language in its opinions. See Green, 474 U.S. at
68 (first use of “continuing violation” language by Supreme Court in 1985); see,
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No. 07-10660
e.g., Rowland, 494 F.3d at 98 (decided in 2007); Warnock, 88 F.3d at 343 (decided
in 1996). Further, termination has long been considered a discrete act for
employment discrimination purposes. Taylor v. Bunge Corp., 775 F.2d 617, 619
(5th Cir. 1985) (per curiam) (stating that termination is not a “continuing
violation” for limitations purposes in an employment discrimination suit);
Prophet v. Armco Steel, Inc., 575 F.2d 579, 580 (5th Cir. 1978) (per curiam)
(same). Therefore, all of the precedent supporting Daniel’s argument was in
existence at the time that this court and the other circuits concluded that
reinstatement may be pursued through Ex parte Young.
Daniel argues that many of the circuits have simply failed to consider
whether a request for reinstatement satisfies the continuing violation
requirement. While Daniel is correct that this element is often not mentioned,
several circuits have directly addressed the requirement and still concluded that
reinstatement may be pursued through Ex parte Young. See Rowland, 494 F.3d
at 96-98 (concluding that harm caused by elimination of position was “ongoing”
for purposes of Ex parte Young); Carten, 282 F.3d at 396 (deciding that
reinstatement was prospective relief designed to end a continuing violation of
federal law); Doe, 131 F.3d at 840-42 (same); Coakley, 877 F.2d at 307 n.2
(same).4 Further, regardless of whether this court explicitly considered the
ongoing violation requirement in Warnock, we clearly held that “Plaintiff’s claim
for . . . [ ]reinstatement[ ] . . . is not barred by sovereign immunity.” 88 F.3d at
343. Thus, Warnock is the law of this circuit on that issue and, absent a
4
The Seventh Circuit’s decision in Sonnleitner v. York, 304 F.3d 704, 718 (7th Cir.
2002), is not to the contrary. There, the constitutional violation concerned the lack of a
hearing prior to a demotion, rather than the demotion itself. Id. Thus, the court concluded
that the proper remedy would have been to order that a hearing take place. Id. However, the
plaintiff had been permitted to tell his side of the story to his employer, leading the court to
decide that there was no ongoing violation of law with respect to the lack of a hearing. Id.
Consequently, Sonnleitner did not hold that a demotion is not an ongoing violation of federal
law.
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No. 07-10660
Supreme Court or en banc decision, we are bound by its holding. See Foster v.
Quarterman, 466 F.3d 359, 367-68 (5th Cir. 2006), cert. denied, 127 S. Ct. 2099
(2007).
Daniel attempts to distinguish Warnock and some of the cases from other
circuits by arguing that they concerned the violation of constitutional rights, as
opposed to statutory rights like the FMLA, and that constitutional claims are
construed more expansively. We consider this to be a distinction without
significance. The Supreme Court has never restricted the application of Ex parte
Young to cases involving constitutional law. See, e.g., Verizon Md., 535 U.S. at
645-48 (allowing suit under Ex parte Young for alleged violation of
Telecommunications Act). Indeed, the doctrine itself refers to violations of
“federal law,” not “constitutional law.” See id. at 645. We, therefore, see no
reason to consider unconstitutional terminations differently than terminations
in violation of the FMLA for purposes of Ex parte Young.
In sum, we conclude that, based on our precedent and precedent from a
majority of the circuits, a request for reinstatement is sufficient to bring a case
within the Ex parte Young exception to Eleventh Amendment immunity, as it is
a claim for prospective relief designed to end a continuing violation of federal
law.5 Consequently, the district court should not have dismissed Nelson’s claim
for reinstatement, and we must reverse the district court’s judgment and
remand for further proceedings.
5
We recognize that this opinion treats terminations as ongoing violations of law with
respect to Ex parte Young but not with respect to employment discrimination limitations
issues. Such a seeming inconsistency is unusual, but not unprecedented. The Ex parte Young
doctrine itself represents a similar paradox—that an unconstitutional action by a state officer
may be “state action” for purposes of the Fourteenth Amendment, but not for purposes of the
Eleventh Amendment. Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982)
(plurality opinion).
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III. CONCLUSION
For the foregoing reasons, we hold that Nelson’s request for reinstatement
is not barred by Eleventh Amendment immunity and that the district court
erred in concluding otherwise.
REVERSED and REMANDED.
11