Summary
stating that Kimel concluded that the ADEA's abrogation of Eleventh Amendment immunity "exceeded Congress' authority under Section 5 of the Fourteenth Amendment"
Summary of this case from Kovacevich v. Kent State UnivOpinion
No. 97-5134
Argued: April 30, 1998
Decided and Filed: April 4, 2000 Pursuant to Sixth Circuit Rule 206
On Remand from the United States Supreme Court. No. 89-02374 — Julia S. Gibbons, Chief District Judge.
ARGUED: Donald A. Donati, DONATI LAW FIRM, Memphis, Tennessee, for Appellants.
Michael E. Moore, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for Appellees.
Seth M. Galanter, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, APPELLATE SECTION, Washington, D.C., for Intervenor. Jeffrey S. Sutton, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Amicus Curiae.
ON BRIEF: Donald A. Donati, DONATI LAW FIRM, Memphis, Tennessee, Jeffrey L. Atchley, NORWOOD, WILSON ATCHLEY, Memphis, Tennessee, for Appellants.
Michael E. Moore, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, Sheri H. Lipman, BURCH, PORTER JOHNSON, Memphis, Tennessee, for Appellees.
Seth M. Galanter, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION, APPELLATE SECTION, Washington, D.C., for Intervenor. Douglas A. Hedin, LAW OFFICE OF DOUGLAS A. HEDIN, Minneapolis, Minnesota, Thomas W. Osborne, AMERICAN ASSOCIATION OF RETIRED PERSONS, Washington, D.C. Jeffrey S. Sutton, Jack W. Decker, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Amici Curiae.
Before: JONES, MOORE, and COLE, Circuit Judges.
OPINION
In our prior opinion in this case, Coger v. Board of Regents, 154 F.3d 296, 307 (6th Cir. 1998), we concluded that Congress intended to abrogate the states' Eleventh Amendment immunity from suit by its enactment of the 1974 amendments to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and that it had the authority to do so pursuant to Section 5 of the Fourteenth Amendment. The Supreme Court, in a plurality opinion, now has determined that although the ADEA does contain a clear statement of Congress' intent to abrogate the states' immunity, the abrogation exceeded Congress' authority under Section 5 of the Fourteenth Amendment. See Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, 649-50 (2000).
Having carefully considered the present case in light of Kimel, we conclude that the faculty members cannot maintain their ADEA suit against the University, a state employer. We therefore VACATE our prior judgment and AFFIRM the district court's order dismissing the plaintiffs' ADEA action.