Here’s a defense worthy of lawyers who slept (or browsed the Web) during their Federal Courts classes at law school. To wit, that the Eleventh Amendment immunity that states enjoy against private lawsuits for damages somehow also applies to suits by the federal government. The Fifth Circuit schools them in seven short pages.
EEOC v. University of Louisiana, No. 08-30327 (5th Cir. Feb. 9, 2009): This is a case with a long heritage. The claimant, Prof. Van McGraw, and the EEOC originally sued the university system for age discrimination regarding the non-renewal of his contract as a professor in 1996. Those actions ended unsuccessfully for McGraw. Vines v. Univ. of La. at Monroe, 398 F.3d 700 (5th Cir. 2005). He then applied for new positions in 2002 and 2004, and the EEOC brought a fresh action under the ADEA. The university brought a motion for summary judgment, asserting Eleventh Amendment immunity under Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
The Fifth Circuit affirms denial of summary judgment on immunity grounds, making the fairly obvious point that the EEOC itself is not barred from bringing suit: “Contrary to ULM’s contention, nothing in Kimel suggests that ADEA claims brought by a federal agency such as the EEOC are subject to sovereign immunity limitations. Indeed, it is well-established that sovereign immunity under the Eleventh Amendment operates only to protect States from private lawsuits-not from lawsuits by the federal government.” Nor is McGraw precluded from benefitting from make-whole relief obtained by the EEOC: “the United States was entitled to seek any relief authorized by the [Act]-including specific relief for the benefit of the [claimant].”
