Eleventh Amendment Doesn't Bar the Government from Suing a State

Posted on March 4, 2009 by Mike Northrup

If the Eleventh Amendment to the U.S. Constitution bars your suit against a State, maybe the U.S. Government can bring the suit for you.  That's what happened in EEOC v. Board of Supervisors for the University of Louisiana System. 

Dr. Van McGraw initially filed an age discrimination suit against the University of Louisiana System ("ULS"), after ULS implemented a new policy prohibiting the re-employment of retirees on a regular full-time basis.  McGraw was ultimately unsuccessful.

After McGraw unsuccessfully attempted to be rehired by ULS as an associate dean or as a professor, he filed a discrimination charge with the EEOC.  The EEOC took up his claim and filed an action against ULS seeking injunctive relief and relief for the benefit of McGraw.  ULS filed a motion for summary judgment and a motion to dismiss, arguing that the Eleventh Amendment barred the proceedings.  After the district court denied the motions, ULS filed an interlocutory appeal.

The United States Court of Appeals for the Fifth Circuit initially observed that the Eleventh Amendment protects States only from private lawsuits, not from lawsuits by the federal government.  The Court points out that two other circuit courts have specifically rejected challenges to suits brought by the EEOC under the Age Discrimination Employment Act.  Accordingly, the Court holds that the district court properly rejected the Eleventh Amendment as a bar to the EEOC's suit.

Notably, the Court also rejected ULS's argument that the EEOC was circumventing the Eleventh Amendment by seeking relief for the benefit of McGraw.  The Court holds that the EEOC has express enforcement power to seek relief that is victim-specific.  The Court's opinion may be found here.
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Whistleblower Act and scope of waiver of immunity

Posted on January 23, 2009 by Mike Northrup

The Houston Fourteenth District Court of Appeals highlighted a split of authority in the courts of appeals regarding waiver of immunity in the Texas Whistleblower Act.  In Galveston ISD v. Jaco, the Court considered the question of whether immunity from liability is coextensive with immunity from suit under the Whistleblower Act.  The Court observed that the San Antonio Court of Appeals, the Amarillo Court of Appeals, and the Waco Court of appeals each have treated the elements of a whistleblower claim as jurisdictional.  However, the Houston First Court of Appeals, the Austin Court of Appeals, the Dallas Court of Appeals, and the Corpus Christi Court of Appeals each have concluded that the elements of a claim are not jurisdictional.  The Fourteenth Court of Appeals joined the latter group and held that waiver of immunity from suit is not dependent upon the merits of the claim.  The Court went on to hold that the trial court had not erred in denying the school district's plea to the jurisdiction. The Court's opinion may be found at this link.

In light of the split of authority, this issue would seem to be ripe for resolution by the Texas Supreme Court.   And it appears the supreme court may address this issue in State of Texas v. Lueck, No. 06-1034.  The Court has granted the petition for review and this issue is one of two presented.  The case was argued November12, 2008.  Briefs in the case may be found at this link.  The oral argument may be found at this link.

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