In Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), the Supreme Court recently held that the Age Discrimination in Employment Act ("ADEA") was not a valid exercise of Congress' Fourteenth Amendment, Section 5 enforcement power and as such did not validly abrogate the States' Eleventh Amendment immunity. Post Kimel, the circuit courts of appeals have been reviewing other federal statutes that allow private citizens to bring actions against states, with many courts finding these claims to be an unconstitutional violation of Eleventh Amendment immunity.
Plaintiff was an employee of the Pennsylvania Department
of Corrections when he suffered a non-work related seizure. He was diagnosed
as having CNS vasculitis of the brain and put on medication. Plaintiff
alleges that this medication has psychiatric side-effects which resulted in
the inappropriate behavior which lead to his demotion and ultimate dismissal.
He brought this claim under the ADA and the defendant state moved to dismiss,
arguing that Congress did not properly abrogate the state's Eleventh Amendment
immunity. The district court allowed the claim to proceed and the defendant
There are two ways to breach Eleventh Amendment immunity: the state can waive the immunity or Congress can abrogate it through the exercise of it authority under Section 5 of the Fourteenth Amendment. The court found that the state did not waive its Eleventh Amendment immunity. First, Pennsylvania's constitution states that "[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." Second, the Pennsylvania legislature has, by statute, expressly declined to waive its Eleventh Amendment immunity - "Nothing contained in this subchapter [on actions against Commonwealth parties in civil actions and proceedings] shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States." Plaintiff's only evidence of waiver was a state management directive asserting that it was the state's policy to follow the ADA. The court found that this was not an action of legislature, and that it only stated that Pennsylvania would enforce the law ". . . in accordance with applicable federal or state acts or regulations." Since none of these required waiver of state immunity, the court found no waiver of immunity.
The court next analyzed the ADA as an exercise of Fourteenth Amendment, Section 5 authority. The court found that Congress satisfied the first prong of the Section 5 test by clearly stating that it intended that the ADA be privately enforced by the states. The court then looked at the statute and the legislative history to determine if Congress had documented a record of systematic discrimination by the states that would rise to deprivation of the equal protection of the law. The court reviewed the pre-Kimel cases upholding the enforcement of the ADA against the states and distinguished them because they did not find the evidence of pervasive state discrimination required to justify abrogation under Kimel. The court also reviewed the few post-Kimel cases upholding the ADA and found that most did not address the Kimel requirements for Section 5 abrogation. The court did agree with the Seventh Circuit's analysis in Erickson v. Board of Governors, 207 F.3d 945 (7th Cir. 2000), and in Stevens v. Illinois Dep't of Transportation, 210 F.3d 732 (7th Cir. 2000), which held that Congress had not found sufficient evidence of unconstitutional state discrimination as to justify Section 5 abrogation of state immunity. Thus the Third Circuit joins the circuits that reject private litigation against the states under ADA, assuring that this issue will eventually be before the United States Supreme Court.
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