with whom
Judges TALLMAN and CALLAHAN join, dissenting:To determine whether Congress validly abrogates a state’s sovereign immunity, we must answer two questions: “first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). With respect to the first question, the Supreme Court has explained that Congress’s intent must be both “unequivocal and textual.” Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); accord Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (“Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.”).
The majority concludes that the Government Employee Rights Act of 1991 (GERA), Pub.L. 102-166, title III, 105 Stat. 1071, 1088, meets this “stringent” clear-statement rule. Dellmuth, 491 U.S. *1079at 228, 109 S.Ct. 2897. I disagree. In my view, a careful analysis of GERA reveals that the standard laid out in Dellmuth and Atascadero, and applied by the Court many times since, has not been met. GERA does not explicitly abrogate state sovereign immunity; it does not specify states as potential defendants; and it does not create a statutory scheme under which states are the only possible defendants. Therefore, I respectfully dissent.
I
Atascadero and Dellmuth considered, respectively, whether the Rehabilitation Act and the Education of the Handicapped Act abrogated state sovereign immunity. Both acts naturally and logically included states as potential defendants. But the Supreme Court concluded that, in both statutes, Congress did not sufficiently express its intent to subject the states to liability.
A
In Atascadero, a case from our circuit, a graduate student sued a California state hospital for discriminating against him in violation of the conditions imposed by the Rehabilitation Act. We held that Congress adequately expressed its intent to abrogate state sovereign immunity because the Rehabilitation Act authorized suits against recipients of federal assistance, and because the “Act contains extensive provisions under which states are the express intended recipients of federal assistance.” Scanlon v. Atascadero State Hosp., 735 F.2d 359, 360 (9th Cir.1984). Specifically, we noted that “Section 794 of the Rehabilitation Act broadly bars ‘discrimination under any program or activity receiving federal financial assistance,’ ” and that “§ 794a(a)(2) provides remedies, procedures, and rights against ‘any recipient of Federal assistance.’ ” Id. We reasoned that, “[i]f states receive federal assistance under the statute, they plainly fall within the defined class of potential defendants.” Id. We therefore concluded that we could logically infer a congressional intent to abrogate state sovereign immunity from the Rehabilitation Act’s authorization of suit against a class of defendants that necessarily included states. Id.
The Supreme Court reversed our decision:
The statute thus provides remedies for violations of § 504 by “any recipient of Federal assistance.” There is no claim here that the State of California is not a recipient of federal aid under the statute. But given their constitutional role, the States are not like any other class of recipients of federal aid. A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.
473 U.S. at 245-46, 105 S.Ct. 3142 (citations omitted). Thus despite the fact that the Rehabilitation Act logically included states within its universe of potential defendants, and despite the states’ common role as “recipients] of Federal assistance,” the Court held “that the Rehabilitation Act does not abrogate the Eleventh Amendment bar to suits against the States.” Id.
Similarly, in Dellmuth, the parent of a child -with a learning disability brought an action against the child’s school district and Pennsylvania’s secretary of education under the Education of the Handicapped Act (later renamed the Individuals with Disabilities Education Act, see P.L. 101-476, 104 Stat. 1103, 1141-42 (1990)). See 491 U.S. at 225,109 S.Ct. 2397. The Third Circuit held that “the text of EHA and its legislative history leave no doubt that Congress intended to abrogate the 11th *1080amendment immunity of the states.” Id. at 227, 109 S.Ct. 2397 (quoting Muth v. Central Bucks Sch. Dist., 839 F.2d 113, 128 (3d Cir.1988)). According to the Third Circuit, “[b]ecause the EHA and its legislative history reflect the ‘most basic of political knowledge that free public education is provided by and under the aegis of the states,’ ... Congress clearly contemplated litigation under the Act against a state in the federal courts.” Muth v. Central Bucks Sch. Dist., 839 F.2d 113, 129 (3d Cir.1988) (quoting David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 422 (1st Cir.1985)).
Again, the Supreme Court reversed. The Court summarily rejected two “non-textual arguments” for abrogation: first, “that abrogation is ‘necessary to achieve the EHA’s goals,’ ” and second, that Congress had amended the Rehabilitation Act after Atascadero to expressly abrogate state sovereign immunity. 491 U.S. at 228-29, 109 S.Ct. 2397. The Court deemed both these arguments “beside the point” and pointedly discouraged arguments based on legislative history. Id. at 230, 109 S.Ct. 2397 (“Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress’ intention is ‘unmistakably clear in the language of the statute,’ recourse to legislative history will be unnecessary; if Congress’ intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.” (quoting Atascadero, 473 U.S. at 242, 105 S.Ct. 3142)).
With respect to the statutory language of the Education of the Handicapped Act (the “proper focus of an inquiry into congressional abrogation of sovereign immunity”), the Court held that none of the provisions on which the Third Circuit relied met Atascadero’s dear-statement requirement. Dellmuth, 491 U.S. at 231, 109 S.Ct. 2397. The Third Circuit had focused on the Act’s findings, in which Congress stated, “it is in the national interest that the Federal government assist State and local efforts to provide programs to meet the education needs of handicapped children in order to assure equal protection of the law.” Muth, 839 F.2d at 128 (quoting 20 U.S.C. § 1415(e)(2)) (alteration in original). The Court dismissed this reasoning: “the general statement of legislative purpose in the Act’s preamble simply has nothing to do with the States’ sovereign immunity.” 491 U.S. at 231,109 S.Ct. 2397.
The Third Circuit also relied heavily on the Education of the Handicapped Act’s judicial review provision, which allowed parties aggrieved by the administrative process to “bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” 839 F.2d at 129 (quoting). The Court rejected this analysis as well, reiterating its statement in Atascadero that “[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” 491 U.S. at 231, 109 S.Ct. 2397 (quoting Atascadero, 473 U.S. at 246, 105 S.Ct. 3142).
The Court recognized that “the EHA’s frequent reference to the States, and its delineation of the States’ important role in securing an appropriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging violations of the EHA.” Id. at 232, 109 S.Ct. 2397. Despite this recognition that the Act’s “statutory structure lends force to the inference that the States were intended to be subject to damages actions for violations of the EHA,” the Court held that “such a permis*1081sible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which, we reaffirm today, is necessary before we will determine that Congress intended to exercise its powers of abrogation.” Id. at 232, 109 S.Ct. 2397. Accordingly, the Court held that “the statutory language of the EHA does not evince an unmistakably clear intention to abrogate the States’ constitutionally secured immunity from suit.” Id. at 232,109 S.Ct. 2397.
This clear-statement rule has been criticized for being exceptionally demanding. See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 75, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (Brennan, J., dissenting) (“Where the Eleventh Amendment applies, the Court has devised a clear-statement principle more robust than its requirement of clarity in any other situation. Indeed, just today, the Court has intimated that this clear-statement principle is not simply a means of discerning congressional intent.” (citing Dellmuth, 491 U.S. at 232, 109 S.Ct. 2397)). But it is binding precedent: under Atascadero and Dellmuth, abrogation by inference is not enough.
B
Although the Atascadero-Dellmuth bar is extraordinarily high, it is not insurmountable. Applying these two decisions, the Court has held that Congress can sufficiently express its intent to abrogate state sovereign immunity in one of three ways:
First, Congress may explicitly provide that it intends to abrogate state sovereign (or Eleventh Amendment) immunity. See, e.g., United States v. Georgia, 546 U.S. 151, 153, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (quoting the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq., which “provides that ‘a State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in a Federal or State court of competent jurisdiction for a violation of this chapter’ ” (internal alterations omitted)); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 635, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (quoting the Patent Remedy Act, 35 U.S.C. § 296(a), which provides that “[a]ny State ... shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court ... for infringement of a patent” (alteration in original)).
Second, Congress may specifically define states as potential defendants. See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (finding an intent to abrogate state sovereign immunity in the Family and Medical Leave Act, 29 U.S.C. § 2617, where the act expressly allowed a suit against a “public agency,” defined “to include both ‘the government of a State or political subdivision thereof and ‘any agency of ... a State, or a political subdivision of a State’ ” (quoting 29 U.S.C. §§ 203(x), 2611(4)(A)(iii)) (alterations in original)); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (finding an intent to abrogate state sovereign immunity in the Age Discrimination in Employment Act (ADEA) because it incorporated by reference a provision in the Fair Labor Standards Act (FLSA) that allowed suit against a “public agency,” which in turn was defined by the FLSA to include “the government of a State”).
Third, Congress may create a statutory scheme under which states are the only possible defendants. In Seminole Tribe of Fla. v. Florida, the Court held that the Indian Gaming Regulatory Act (IGRA) expressed a congressional intent to abrogate state sovereign immunity, although the *1082Court also held that purported abrogation invalid. 517 U.S. 44, 57, 72, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The Court explained that it agreed with the Eleventh Circuit’s holding below (as well as with the parties “and with virtually every other court that has confronted the question”) that IGRA provided an “unmistakably clear” statement of its intent to abrogate state sovereign immunity. 517 U.S. at 56, 116 S.Ct. 1114 (quoting Dellmuth, 491 U.S. at 228, 109 S.Ct. 2397). The Court noted that IGRA imposed duties on “a State” to negotiate in good faith with Indian Tribes, and created a complex remedial scheme imposing various liabilities on “the State” that shirked its responsibilities under IGRA. Id. at 56-57. The Court concluded that IGRA’s provisions “refer to ‘the State’ in a context that makes it clear that the State is the defendant to the suit brought by an Indian tribe,” id. at 57, 116 S.Ct. 1114, observing that IGRA’s detailed remedial provisions scheme “repeatedly refers exclusively to ‘the State.’ ” Id. at 75 n. 17, 116 S.Ct. 1114 (explaining why IGRA’s remedial scheme implicitly precluded prospective injunctive relief under Ex Parte Young). Thus the Court, like the Eleventh Circuit in the decision below, concluded that the Atascadero-Dellmuth dear-statement rule was satisfied where Congress had created a statutory scheme that would have no effect at all if states were not potential defendants. See Seminole Tribe v. Florida, 11 F.3d 1016, 1024 (11th Cir.1994) (“The only possible defendant to such a suit [under IGRA] is a state. Thus, unless Congress intended to abrogate the states’ immunity, this portion of IGRA would be of no effect.”).
In none of these cases, however, has the Court backed away from its holding in Atascadero and Dellmuth that nothing short of an unambiguous and textual statement will suffice. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (following Atascadero and holding that general statutory language prohibiting mandatory retirement did not subject states to liability).
II
GERA does not meet the stringent standard set by Atascadero and Dellmuth. GERA contains no express statement of congressional intent to abrogate state sovereign immunity, and it does not specifically define the states as defendants. Indeed, GERA contains no express definition of the individuals and entities subject to claims under its provisions. The two relevant GERA provisions in effect when Ward and Jones brought their claims in 1994 simply defined what types of discriminatory conduct were prohibited1 and which government employees could bring claims.2 Nor did GERA’s remedies provi*1083sion, Section 307(h),3 incorporate by reference any other provision of law expressly and unequivocally abrogating state sovereign immunity, as was the case in Kimel.
A
The majority cites GERA’s cross-reference to Title VII’s back-pay remedy and concludes, based on Title VII’s use of the word “employer,” that this cross-reference satisfies the Atascadero-Dellmwth dear-statement rule. Maj. Op. at 1067 (“GERA’s provisions, entitling state employees to ‘back pay ... payable by the employer,’ 42 U.S.C. §§ 2000e-5(g)(l), 2000e-16c, unmistakably express Congress’s intent to allow suits against states for damages.” (alterations in original)). Citing Kimel the majority states that “GERA is cut from the same cloth as the ADEA,” id. at 1076, suggesting that GERA incorporates Title VII’s definition of states as defendants in the same way that the ADEA incorporates the FLSA’s.4
This analogy does not survive close examination. As Kimel explained, the ADEA incorporates various rights of action under the FLSA: the ADEA, 29 U.S.C. § 626(b), states that “[t]he provisions of this chapter shall be enforced in accordance with the powers, remedies, and *1084procedures provided in” section 216(b) of the FLSA, 29 U.S.C. § 216(b). This cross-referenced provision, section 216(b) of the FLSA, provides that an “action to recover” back pay “may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The FLSA defines “public agency” as including, among other things, “the government of a State.” 29 U.S.C. § 203(x). Because the ADEA incorporated the FLSA’s enforcement provision, which provides parties a right of action against states, the Court concluded that the ADEA sufficiently expressed an intent to abrogate state sovereign immunity. See Kimel, 528 U.S. at 73-74, 120 S.Ct. 631.
GERA, by contrast, does not incorporate the provisions of Title VII that authorize plaintiffs to maintain civil actions, 42 U.S.C. §§ 2000e-5(f), 2000e-16(c). Nor does GERA incorporate Title VII’s definition of “person[s]” subject to suit, 42 U.S.C. § 2000e(a). GERA merely provides that the remedies available to GERA claimants may include “such remedies as would be appropriate if awarded under section 706(g) and (k) of the Civil Rights Act of 1964 (42 U.S.C.2000e-5(g) and (k)).” 105 Stat. at 1091 (currently codified at 42 U.S.C. § 2000e-16b(b)). By making available such remedies “as would be appropriate,” GERA indicates that Title VII’s remedies are incorporated into GERA mutatis mutandis, i.e., with “all necessary changes having been made.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 17, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (addressing a statutory scheme in which the Medicare Act provided for judicial review “to the same extent as is provided in” the Social Security Act). This is confirmed by the wording of section 706(g), the incorporated Title VII provision on which the majority relies. Section 706(g) states that in an EEOC civil enforcement action a “court may ... order such affirmative action as may be appropriate,” including “reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(l). The natural reading of GERA’s statement that claimants have “such remedies as would be appropriate if awarded under section 706(g)” is that a court may award GERA claimants back pay, reinstatement, or other equitable remedies described in § 706(g) against appropriate GERA defendants. Section 706(g) deals with the types of remedies available, not with who can be sued. Reading GERA as allowing actions against any entity mentioned in § 706(g) would lead to the incongruous conclusion that GERA authorizes suits against employment agencies and labor organizations.
Because GERA does not expressly incorporate a cause of action against the states, but merely makes Title VII’s remedies available for claims otherwise authorized under its provisions, GERA’s cross-reference to Title VII does not provide a basis for concluding that it unmistakably abrogates state sovereign immunity.
B
Nor can the majority rely on the fact that some of the employees covered by GERA are employed by states. Cf. Maj. Op. at 1066 (“GERA expressly covers state employees, and expressly gives them a right to collect damages ‘payable by the employer’ — the state.” (emphasis in original)). As the majority acknowl*1085edges, a “general authorization for suit in federal court” is an insufficient expression of congressional intent to abrogate state sovereign immunity, even if the states are logically included within the definition of persons and entities subject to suit. Atascadero, 473 U.S. at 245-46, 105 S.Ct. 3142 (“The statute thus provides remedies for violations of § 504 by ‘any recipient of Federal assistance.’ There is no claim here that the State of California is not a recipient of federal aid under the statute.”).
By the same token, the fact that state employees are within the universe of potential GERA claimants is insufficient. As explained above, GERA would have to define its potential claimants in such a way as to make states the only possible defendants before we could properly find an “unmistakably clear” intent to abrogate state sovereign immunity. Seminole Tribe, 517 U.S. at 56, 116 S.Ct. 1114 (quoting Dellmuth, 491 U.S. at 228, 109 S.Ct. 2397). But unlike IGRA, the act at issue in Seminole Tribe, GERA does not create a remedial scheme under which states are the only potential defendants. It does not expressly impose any duties or responsibilities on states. In fact, GERA’s lone reference to “state employees” appears in the heading of Section 321, 105 Stat. at 1097, the text of which refers broadly to appointees of elected officials of “any State or political subdivision thereof’ (emphasis added).5 See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (holding that a statute’s caption “cannot undo or limit that which the statute’s text makes plain”) (quoting Trainmen v. Balt. & Ohio R. R. Co., 331 U.S. 519, 529, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (alteration omitted)).
The plain language of GERA allows claims to be brought against a variety of non-state defendants not shielded by sovereign immunity. Most important, state officials are subject to suit under GERA. GERA allows an aggrieved employee to bring a claim for prospective injunctive relief, see GERA § 307(h), codified at 2 U.S.C. § 1207(h) (1994) (incorporating the injunctive relief remedies set forth in 42 U.S.C. § 2000e-5 and 29 U.S.C. § 633a), and sovereign immunity poses no bar to a GERA action against a state official so long as the complaint “alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm. of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (O’Connor, J., concurring)); see also Missouri v. Jenkins, 491 U.S. 274, 290, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). Nothing in the text of GERA prevents a public employee from bringing an action against a state official in that official’s individual capacity for violating GERA’s non-discrimination requirement. Cf. Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1038 (9th Cir.2006) (holding that Title VII’s definition of “employer” excludes individuals); Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir.1993).
Moreover, because GERA covers appointees of elected officials of a “political subdivision of any State,” § 321(a), GERA claimants may also bring actions against political subdivisions of states, such as *1086counties and municipalities, that are not shielded by sovereign immunity. See Northern Ins. Co. v. Chatham County, 547 U.S. 189, 193, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006). The Tenth and Fifth Circuits have both held that GERA allows claims against counties. See Fremont County v. EEOC, 405 F.3d 840 (10th Cir.2005); Brazoria County v. EEOC, 391 F.3d 685 (5th Cir.2004). And we have construed the phrase “political subdivision of any State” in Title VII and the ADEA to include counties and cities. See Ramirez v. San Mateo County Dist. Attorney’s Office, 639 F.2d 509 (9th Cir.1981); see also Monce v. City of San Diego, 895 F.2d 560 (9th Cir.1990).
C
In sum, GERA does not unequivocally and textually abrogate state sovereign immunity. It does not (1) expressly invoke Congress’s intent to do so, (2) specifically define states as defendants, or (3) make states the only possible defendants. Rather, the GERA provisions at issue in this case are indistinguishable from the EHA (now IDEA) provisions in Dellmuth, where the act allowed suit against recipients of federal education grants who failed to provide a “free appropriate public education” to schoolchildren. Muth, 839 F.2d at 116. Notwithstanding the “most basic of political knowledge that free public education is provided by and under the aegis of the states,” id. at 129, the Court held that Congress had not provided an “unequivocal and textual” expression of intent to abrogate state sovereign immunity. Dellmuth, 491 U.S. at 230, 109 S.Ct. 2397.
Ill
The parties raise an additional argument as to why GERA abrogates state sovereign immunity. As noted above, the Supreme Court held in Fitzpatrick that Congress sufficiently expressed its intent to abrogate state sovereign immunity in Title VII of the Civil Rights Act of 1964, as amended. See 427 U.S. at 453 n. 9, 96 S.Ct. 2666. While the majority bases its abrogation analysis on GERA’s cross-reference to Title VII’s back-pay provision, Ward and EEOC argue, somewhat opaquely, that GERA is either part of Title VII or sufficiently similar to Title VII that we are bound by Fitzpatrick.
In light of Atascadero and Dellmuth, this argument is untenable. The proposition that GERA abrogates state sovereign immunity because its substantive prohibitions or policy goals are similar to those of Title VII is nothing if not an inference, and we cannot conclude Congress intended to abrogate state sovereign immunity unless it expressed that intent in the clearest terms. Nonetheless, Fitzpatrick remains binding precedent on the narrow issue it decided: that Title VII expresses a congressional intent to abrogate state sovereign immunity. See Agostini, 521 U.S. at 237, 117 S.Ct. 1997. Although neither Ward nor the EEOC went so far in their briefs as to argue that GERA is actually part of Title VII, Ward’s counsel indicated that he agreed with this position at oral argument.6
*1087A review of the history of Title VII and GERA, however, makes clear that GERA is not, and never has been, a part of Title VII. Indeed, when Ward and Jones brought their claims in 1994, the two statutes were not even in the same title of the United States Code.
Title VII of the Civil Rights Act of 1964 prohibited employment discrimination based on race, color, religion, sex, and national origin, but it did not extend its protection to state employees. Fitzpatrick, 427 U.S. at 449, 96 S.Ct. 2666. In 1972, after extensive hearings, Congress amended Title VII’s definition of a “person” subject to suit to include “governments, governmental agencies, [and] political subdivisions,” but also amended Title VII’s definition of “employee” to exclude political appointees as potential plaintiffs. Pub.L. 92-261 § 2(1), (5), 86 Stat. 103, codified at 42 U.S.C. § 2000e(a), (f). The net effect of these amendments was to allow all public employees, except for elected officers and their political appointees, to sue governmental entities for employment discrimination under Title VII.
Two decades later, Congress enacted the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071. Title I of the Act, entitled “Federal Civil Rights Remedies,” amended various provisions of federal law, including Title VII and 42 U.S.C. §§ 1981 and 1988. Title III of the act, entitled the “Government Employee Rights Act of 1991” (GERA), created a new, self-contained act to “provide procedures to protect the right of Senate and other government employees,” § 301(b), which was subsequently codified as part of Title 2 of the United States Code (statutes relating to Congress). Nothing in Title III (GERA) amended the Civil Rights Act of 1964. Congress could have easily extended Title VII to state and local political employees by amending Title VII to eliminate the exclusion of political appointees from the definition of “person” subject to protection from discrimination. See 42 U.S.C. § 2000e(f). Congress knew how to amend Title VTI, and did so in Title I of the Civil Rights Act of 1991, see 105 Stat. 1074 (expressly amending Title VII). But Congress chose not to do so in GERA. Accordingly, Fitzpatrick does not control our abrogation analysis.
IV
Atascadero and Dellmuth instruct us that we cannot infer a congressional intent to abrogate state sovereign immunity simply because the states are logically included within the set of potential defendants. GERA does not expressly abrogate state sovereign immunity, either directly or by reference. Nor does GERA limit its universe of possible defendants to the states alone. Because the text of GERA does not meet the high threshold set by the Supreme Court’s clear-statement rule in Atascadero and Dellmuth, I would hold Jones’s and Ward’s claims against Alaska barred by sovereign immunity and grant Alaska’s petition for review. Therefore, I must respectfully dissent.
. Section 302, 105 Stat. at 1088, codified at 2 U.S.C. § 1202 (1994), established the right of employees of the Senate to be free from specified forms of discrimination:
All personnel actions affecting employees of the Senate shall be made free from any discrimination based on — ■
(1) race, color, religion, sex, or national origin, within the meaning of section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
(2) age, within the meaning of section 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a); or
(3) handicap or disability, within the meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and sections 102-104 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112-14).
. Section 321(a) of GERA, 105 Stat. at 1097-98, codified at 2 U.S.C. § 1220(a) (1994), defined the employees who were entitled to the protections of Section 302 of GERA to include state and local political appointees:
The rights, protections, and remedies provided pursuant to section 302 [establish*1083ing the right of Senate employees to be free from specified discrimination] and 307(h) [establishing the remedies for violation of that right] of this title shall apply with respect to employment of any individual chosen or appointed, by a person elected to public office in any State or political subdivision of any State by the qualified voters thereof—
(1) to be a member of the elected official’s personal staff;
(2) to serve the elected official on the policymaking level;
(3) to serve the elected official as an immediate advisor with respect to the exercise of the constitutional or legal powers of the office.
Section 321 was later redesignated as Section 304 by the "Congressional Accountability Act of 1995,” Pub.L. 104-1 § 405, 109 Stat. 3, 41.
. Section 307(h) of GERA, 105 Stat. at 1092, codified at 2 U.S.C. § 1207(h) (1994), set forth the following remedies for a violation of GERA:
If the hearing board determines that a violation has occurred, it shall order such remedies as would be appropriate if awarded under section 706(g) and (k) of the Civil Rights Act of 1964 (42 U.S.C.2000e-5 (g) and (k)), and may also order the award of such compensatory damages as would be appropriate if awarded under section 1977 and section 1977A (a) and (b)(2) of the Revised Statutes (42 U.S.C. 1981 and 1981A (a) and (b)(2)). In the case of a determination that a violation based on age has occurred, the hearing board shall order such remedies as would be appropriate if awarded under section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)). Any order requiring the payment of money must be approved by a Senate resolution reported by the Committee on Rules and Administration. The hearing board shall have no authority to award punitive damages.
The remedies in Section 307(h) were amended and moved to Section 302(b) in 1995. See Pub.L. 104-1 § 504, 109 Stat. 3, 40-41. They are currently codified at 42 U.S.C. § 2000e-16b(b).
. Title VII does not actually contain any provision that specifically provides for suit against states, but in a pre-Atascadero case the Supreme Court held, based on a passing reference to legislative history, that Title VII’s definition of possible defendants expressed a congressional intent to abrogate state sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n. 9, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Although inconsistent with Dellmuth, 491 U.S. at 230, 109 S.Ct. 2397, this holding is nonetheless controlling with respect to Title VII. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (”[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”).
. Section 302 of GERA was amended in 1995, after Ward and Jones brought their claims, to refer to the state employees referred to in Section 321 (redesignated Section 304). See Pub.L. 104 — 1, 109 Stat. at 40. Neither the majority nor the parties suggest that we should place any weight on amendments made to GERA after Ward and Jones brought their claims.
. Ward's brief notably stops short of claiming that Title III of the Civil Rights Act of 1991 (i.e., GERA) constitutes an amendment to Title VII of the Civil Rights Act of 1964, although when responding to our questioning Ward’s counsel seemed willing to accept this position:
Q: I just want to make clear what your position is on this.
A: Right. I mean, Your Honor, I would not suggest that it’s not part of Title VII. It’s certainly an amendment to Title VII, codified as part of Title VII.... Yes, this definitely amends and adds to [Title VII]; it carries with it the same principles as Title *1087VII. It adds a new basis of liability, and so in interpreting that new basis of liability—
Q: Why are you having trouble saying 'Yes, this is Title VII’? .... You're using double negatives and beating around the bush. Is it your position that GERA is Title VII?
A: Yes, GERA is part of Title VII, absolutely-