Kazmier v. Widmann

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.

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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).

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cannot decree the substance of the Fourteenth Amendment’s

restriction on the States.... It has been given the power