PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DANIJELA MOJSILOVIC; ALEKSANDAR MOJSILOVIC, Plaintiffs - Appellants,

v. STATE OF OKLAHOMA EX REL. THE BOARD OF REGENTS FOR THE UNIVERSITY OF OKLAHOMA, Defendant - Appellee, and PURE PROTEIN LLC; WILLIAM HILDEBRAND, Defendants. No. 15-6151

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:14-CV-00886-R)

________________ _________________ Submitted on the briefs: * George S. Freedman and Sarah Rowe Clu tts, Lester, Spencer Fane, LLP, Edmond, Oklahoma, for Plai ntiffs-Appellants.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### November 17, 2016
Elisabeth A. Shumaker Clerk of Court2 Gus H. Buthman and Gauri D. Nautiyal, O ffice of Legal Counsel, University of Oklahoma, Norman, Oklahoma; Clyde A. Much more and Evan G. E. Vincent, Crowe & Dunlevy, A Professional Corporation, Oklahoma City, Oklaho ma, for DefendantAppellee.

________________ _________________ Before MATHESON , McKAY , and O’BRIEN , Circuit Judges.

________________ _________________ McKAY , Circuit Judge.

________________ _________________ Danijela and Aleksandar Mojsilovic a ppeal the dismissal of their damages claim under the Trafficking Victims Prot ection Reauthorization Act (TVPRA), 18 U.S.C. § 1595, which provi des a civil remedy for victim s of forced labor. The Mojsilovics claim the Univers ity of Oklahoma, through one of its agents, forced them to work by threatening their immigration st atus, but the district court concluded the University was entitled to sovereign immunity. We ex ercise jurisdiction under 28 U.S.C. § 1291 and affirm th e district court’s judgment.
I The Mojsilovics are Serbian scientists recruited and hired by the University of Oklahoma to serve as research assistants at the University’s Health Sciences Center. In that capacity, Aleksandar was hired to conduct DNA sequenc ing and tissue typing for research and clinical st udies; Danijela was hired to make transfectants and tissue cultures. The Mojsilovics we re retained by the Universi ty through the H-1B visa program, and they were supervised by Dr. William Hildebrand, th e director of the medical research laboratory at the Health Sciences Center. Dr. Hildebrand also owns3 a biotechnology company called Pure Prot ein, which, through a contractual arrangement, shares the University’s fa cilities to perfor m similar work. According to the Mojsilovics , shortly after they were hired, Dr. Hildebrand demanded that they also work for Pure Prot ein. He allegedly re quired them to work longer hours than permitted by their visa app lications, without pay, and threatened to have their visas revoked if they objected. Dr. Hildebrand became verbally abusive at times, and because he was authorized to make hiri ng and firing decisions, the Mojsilovics claimed they fear ed he would take action agai nst their immigration status if they did not comply with his demands. The Mojsilovics eventually filed suit, naming the Un iversity, Dr. Hildebrand, and Pure Protein as defendants. In a four-count complaint, they claimed violations of the TVPRA’s forced labor provision, 18 U.S.C. § 1589, the TVPRA’s human trafficking provision, id. § 1590, the Fair Labor Stan dards Act (FLSA), 29 U.S.C. § 216(b) (permitting employees to rec over for unpaid overtime), and the Oklahoma Protection of Labor Act (OPLA), Okla. Stat. tit. 40, § 165.9 (permitting employees to recover for unpaid wages). All claims were premised on Dr. Hildebrand’s threats to have the Mojsilovics deported if they refu sed to perform additional work for Pure Protein without pay. They sought damages under the TVPRA’s civil remedy provision, 18 U.S.C. § 1595, as well as declarat ory and injunctive relief, liquidated and compensatory damages, cost s, and attorney’s fees. Defendants filed separate mo tions to dismiss, which th e district court granted in part and denied in part with respect to Dr. Hildebrand and Pure Protein; those4 rulings are not implicated in this appeal. 1 For its part, the Un iversity argued (among other things) that as a state entity, it was entitled to sovereign imm unity. In response, the Mojsilovics conceded that soverei gn immunity barred their FLSA and OPLA claims. But they argued that soverei gn immunity posed no bar to their TVPRA claims because the statut e was enacted under Congress’s Thirteenth Amendment authority to abolish involuntary servitude. According to the Mo jsilovics, the States surrendered sovereign immunity for claims of involuntary servitude by ratifying the Thirteenth Amendment. And in any event, they argued, the statutory language of the TVPRA expressly abrogates sovereign immunity for “[w]hoever” engages in prohibited conduct, thus manife sting a clear intent to abr ogate sovereign immunity of the States. 18 U.S.C. §§ 1589, 1595. The di strict court rejected these arguments and dismissed the Mojsilovics’ clai ms. This appeal followed. 2
II We review de novo the district court’ s dismissal based on sovereign immunity. Peterson v. Martinez , 707 F.3d 1197, 1205 (10th Ci r. 2013). “A foundational premise of the federal system is that States, as soverei gns, are immune from suits for damages, save as they elec t to waive that defense.” Coleman v. Court of Appeals of Md. , ___ U.S. ___, 132 S. Ct. 1327, 1333 (2012). A well- established exception to

1 The surviving claims against Dr. Hildebrand and Pure Protein remain pending in the district court, which certifi ed its order dismissi ng the claims against the University as a final, appealable judgment. See Fed. R. Civ. P. 54(b).

2 The Mojsilovics appeal only the dismi ssal of their forced labor claim under the TVPRA, not the disposition of their FL SA, OPLA, or human trafficking claims. See Aplt. Br. at 4 n.1.5 this principle, however, is that Congress may abrogate the States’ immunity. Id. “[T]o determine whether Congress has abroga ted the States’ sovereign immunity, we ask two questions: first, whether Congress has unequivocally expr essed its intent to abrogate the immunity, and second, whethe r Congress has acted pursuant to a valid exercise of power.” Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 55 (1996) (citation, brackets and intern al quotation marks omitted). In answering the first question—whethe r Congress intended to abrogate state sovereign immunity—we employ a “simpl e but stringent test: Congress may abrogate the States’ constitu tionally secured immunity fro m suit in federal court only by making its intention unmistakably clear in the language of the statute.” Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 73 (2000) (empha sis added) (internal quotation marks omitted). A general authorization for suit is insufficient to abrogate the States’ sovereign immunity. Atascadero State Hosp. v. Scanlon , 473 U.S. 234, 246 (1985), superseded by statute , 42 U.S.C. § 2000d-7(a), as recognized in Lane v. Pena , 518 U.S. 187, 198 (1996); accord Blatchford v. Native Vill. of Noatak , 501 U.S. 775, 786 n.4 (1991) (“The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congre ss has abrogated all defenses to that claim.”). For example, in Coleman , the Court concluded Congr ess made “unmistakably clear” its intent to abrogate the States’ immunity by speci fying in the language of the relevant statute that any “pub lic agency” could be sued, de fining that term to include “both the government of a State or political subdivision thereof and any agency of a State, or a political subdivision of a State. ” 132 S. Ct. at 1333 (ellipsis and internal6 quotation marks omitted ). Similarly, in Seminole Tribe , the Court found “unmistakably clear” evidence that Congr ess intended to abrogate the States’ immunity because “the State” was identified as the appropriate defendant in a lawsuit brought under the statute at issue. 517 U.S. at 56-57. By contrast, the TVPRA identifies as a criminal defendant in a forced labor case “[w]hoever” engage s in prohibited conduct: (a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means-- (1) by means of force, threats of for ce, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threat s of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or le gal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that pe rson did not perform such labor or services, that person or another pe rson would suffer serious harm or physical restraint, shall be punished as provi ded in subsection (d). (b) Whoever knowingly benefits, financiall y or by receiving anything of value, from participation in a ve nture which has engaged in the providing or obtaining of labor or services . . . knowing or in reckless disregard of the fact that the vent ure has engaged in the providing or obtaining of labor or serv ices by any of such m eans, shall be punished as provided in subsection (d). 18 U.S.C. § 1589 (emphasis a dded). Similarly, the TVPRA’s civil remedy provision establishes a private cause of action against a “perpetrator ” or “whoever” violates the
TVPRA:7 An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receivi ng anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damage s and reasonable a ttorneys fees. Id. § 1595(a) (emphasis added) . But the terms “perpetrat or” and “whoever” are not defined by the statute, and standing alone, these broad terms signal no intent to abrogate sovereign immunity—certainly not an “unmistakably clear” congressional intent to do so. See Atascadero , 473 U.S. at 245-46 (concluding that statutory language creating liability for “any recipi ent” of federal assistance was not unmistakably clear intent to ab rogate sovereign immunity); see also Fla. Prepaid Postsecondary Educ. Expens e Bd. v. Coll. Sav. Bank , 527 U.S. 627, 631-32 (1999) (observing that previous ly undefined statutory language creating liability for “whoever” violated patent laws failed to abroga te sovereign immunity). Nevertheless, the Mojsilovics contend th ere need not be an unmistakably clear statement of legislative intent because Congress enacted the TVPRA pursuant to its Thirteenth Amendment authority to erad icate slavery and involuntary servitude. 3 The Mojsilovics argue that the States surre ndered sovereign immunity by ratifying the Thirteenth Amendment, which confers upo n Congress plenary authority to abolish involuntary servitude, and as a consequence, there is no sovereign immunity for Congress to abrogate. See Aplt. Br. at 24 (“[T]he abr ogation of sovereign immunity

3 The Thirteenth Amendment provides th at “[n]either slav ery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.8 thus occurs within the Thirteenth Amendmen t itself, and it is th erefore not necessary for Congress to further stat e its intent to abrogate the States’ immunity.”). But the Mojsilovics’ premis e is incorrect: The TV PRA was not enacted under the Thirteenth Amendment; it was enacted under Cong ress’s Commerce Clause
powers. See H.R. Rep. No. 108-264(I), at 14 (2003) (“[T]he Co mmittee finds the authority for [the TVPRA] in article I, section 8 of the Constitution.”); 18 U.S.C. § 1591(a) (proscribing sex trafficking “i n or affecting interstate or foreign commerce”); see also Francisco v. Susano , 525 F. App’x 828, 834 n.8 (10th Cir. 2013) (noting that predecessor statute to TVPRA was enacted under Congress’s Commerce Clause powers); Ditullio v. Boehm , 662 F.3d 1091, 1097 n.4 (9th Cir. 2011) (same). This source of congressi onal authority is significant because “Congress may not abrogate th e States’ sovereign immunity pursuant to its Article I power over commerce.” Nev. Dep’t of Human Res. v. Hibbs , 538 U.S. 721, 727 (2003); see Seminole Tribe , 517 U.S. at 72-73 (“The Eleventh Amendment restricts the judicial power under Article III, and Ar ticle I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”). Thus , even if Congress had intended to abrogate s overeign immunity in the TVPRA, it had no authority to do so under the Commerce Clause. The Mojsilovics’ arguments to the contra ry are unavailing. To support their assertion that the TVPRA was enacted under the Thirteenth Ame ndment, they cite congressional findings for the TVPRA’s pred ecessor statute reflec ting the evils of human trafficking. See Pub. Law 106-386 §§ 102(b)(1), (12), (21) & (22), 114 Stat.9 1464 (2000). Section 102(b)(1) states that “[t]rafficking in persons is a modern form of slavery, and it is the largest manifestat ion of slavery today.” Section 102(b)(12) actually supports our conclusion that the TVPRA was enacted under the Commerce Clause, indicating that “[t]ra fficking in persons substantia lly affects interstate and foreign commerce.” Section 10 2(b)(21) states that “[t]raffi cking of persons is an evil requiring concerted and vigor ous action.” And section 10 2(b)(22) states that the Declaration of Independence recognizes th e “right to be free from slavery and involuntary servitude” as inal ienable rights. But none of these findings demonstrate the TVPRA was enacted under the Thirteenth Amendment. 4 The Mojsilovics also contend there need not always be a clear statement of congressional intent to abr ogate sovereign immunity, as the Supreme Court endorsed
in Central Virginia Comm unity College v. Katz , 546 U.S. 356 (2006). Katz analyzed congressional power under th e Bankruptcy Clause to s ubordinate State sovereign immunity in bankrupt cy proceedings. See id. at 362. In that unique context, the Court explained, bankruptcy ju risdiction is “principally in rem ” and as a consequence does not usually “interfere w ith state sovereignty even when States’ interests are affected.” Id. at 369-70. Yet, to the extent an cillary bankruptcy or ders do implicate sovereign immunity, the evolution of the Bankruptcy Clause indicates the States

4 In their reply brief, the Mojsilovics c ite a non-binding dist rict court decision , see John Roe I v. Bridgestone Corp. , 492 F. Supp. 2d 988, 100 3 (S.D. Ind. 2007), and an unpublished magistrate ju dge’s report and recommendation, see United States v. Garcia , No. 02-CR-110S-01, 2003 WL 2293 8040 (W.D.N.Y. Dec. 2, 2003) (unpublished), both suggesting the TVPR A was enacted under the Thirteenth Amendment. These decisions provide lit tle or no supporting an alysis, however, and we find neither deci sion authoritative.10 agreed in ratifying the Constitution not to assert their immunity in bankruptcy proceedings. Id. at 364-70, 378. Analogizing to Katz , the Mojsilovics contend th e States ceded sovereign immunity by ratifying the Thirteenth Amendmen t. But as we have already discussed, the TVPRA was enacted under the Commerce Clause, which provides no congressional authority for abrogation. T hus, absent a valid s ource of constitutional authority to abrogate sovereign immunity and an unmistakably clear statement of congressional intent to do so, the district court correctly dismissed the Mojsilovics’ TVPRA claim. The judgment of the distri ct court is affirmed.