1 Because ULM is not a juridical person and lacks the capacity to be sued, the EEOC

amended its complaint to name the Board of Supervisors for the University of Louisiana System as defendant. For purposes of simplicity, we refer to the defendant-appellant as ULM throughout this opinion. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30327

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff - Appellee v. BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM Defendant - Appellant

Appeal from the United States District Court for the Western District of Louisiana

Before KING, BENAVIDES, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: The Equal Employment Opportunity Commission (“EEOC”) brought this suit against the University of Louisiana at Monroe (“ULM”)1 for alleged violationsoftheAge Discrimination in Employment Act (“ADEA”). ULM moved to dismiss on Eleventh Amendment immunity grounds, and the district court deni ed the motion. ULM now brings this interlocutory appeal under the collateral order doctrine. For the following reasons, we affirm. United States Court of Appeals

Fifth Circuit 

### F I L E D February 9, 2009 Charles R. Fulbruge III ClerkNo. 08-30327

2 FACTS AND PROCEEDINGS Dr. Van McGraw was formerly employed as a professor and dean at ULM—which, along with other public universities in Louisiana, is a part ofthe University ofLouisiana System. McGraw began his academic career in 1959 and served as the dean of ULM’s College of Business Administration from 1976 to 1989. When he retired as dean, he was immediately rehired by ULM as a professor. In 1996, ULM did not renew McGraw’s contract to teach for the following year pursuant to a new policy prohibiting the re-employment of retirees on a regular full-time basis. McGraw and the EEOC filed state and federal actions alleging that ULM’s newpolicy and certain other practices ofthe university impermissibly discrimi nated on the basis of age, but these initial lawsuits were all ultimately unsuccessful. See Vines v. Univ. of La. at Monroe , 398 F.3d 700, 703–04 (5th Cir. 2005) (discussing the chronology ofthese cases). From 200

2 to 2004, McGraw unsuccessfully attempted to be rehired by ULM as an associate dean or as a professor. He filed a discrimination charge with the EEOC and a lawsuit against ULM in state court. In 2005, the EEOC instituted the present action against ULM, seeking injunctive relief against ULM’s discriminatory practices as well as make-whole relief for McGraw—including placement in the position of his choice, backpay, and other

monetary relief. The complaint alleges that ULM violated the ADEA when it denied McGrawthe positions hesought in 2002–2004, in retaliation for his prior suits, or, alternatively, on the basis ofhis age. ULM filed a motion for summary judgment and moved to dismiss, arguing, among other things, that Eleventh Amendment immunity barred the proceedings. The district court denied the motion on February 25, 2008. ULM timely filed this interlocutory appeal underNo. 08-30327

2 ULM alsoappears toargue that McGrawshould be barred from proceeding in itsstate court suit based on resjudicata and prescription principles. The viability of McGraw’s state claims is entirely irrelevant to the present action—brought by another party, the EEOC, in federal court, under federal law. In addition, this case is before the court on interlocutory appeal under the collateral order doctrine, for the limited purpose of determining whether ULM is entitled to Eleventh Amendment immunity. We therefore do not consider ULM’s request that McGraw be barred from proceeding in state court. 3 the collateral order doctrine, requesting review of the district court’s denial of sovereign immunity. 2 STANDARD OF REVIEW “This court reviews denials of Eleventh Amendment immunity de novo.” McCarthy v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004). DISCUSSION ULM contends that it is entitled to sovereign immunity from the EEOC’s lawsuit under the Eleventh Amendment

. I ts argument relies principally on Kimel v. Florida Board of Regents, where the Supreme Court examined the validity ofthe ADEA’s purported abrogation ofthe States’ sovereign immunity. 528 U.S. 62 (2000). In light of the guidelines established in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72–73 (1996), the Kimel Court first held that the abrogation o

f sovereign immunity was conditioned upon a proper exercise of Congress’s enforcement powers under the Fourteenth Amendment. 528 U.S. at 80. It noted that the ADEA’s general prohibition against age-based employment discrimination “imposes substantially higher burdens on state employers” than the Constitution’s equal protection requirements, id. at 87, and that Congress had failed to identify a widespread pattern of unconstitutional age discrimination by the States that would justify the enactment of bro ad prophylacticlegislation, id. at 91. Therefore, the Court concluded that “CongressNo. 08-30327

4 did not validly abrogate the States’ sovereign immunity to suits by private individuals” under the ADEA

. Id. ( emphasis added). 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 iswell-established that sovereign immunity under the Eleventh Amendment operates only to protec t States from private lawsuits —not from lawsuits by thefederal government. SeeWestVirginia v. United States, 479 U.S. 305, 311 (1987) (“States have no sovereign immunity as against the Federal Government”); Alde

n v. Maine

, 527 U.S. 706, 755 (1999) (“In ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government.”). In Seminole Tribe , the Court thus insisted that, notwithstanding the States’ immunity from private suits, “[t]he Federal Government can bring suit in federal court against a State” in order to ensure its compliance with federal law. 517 U.S. at 71 n.14. Further, when the Court later extended the Kimel principles to the American with Disabilities Act (“ADA”), it reiterated that, even though privateADA claimsagainst Stateswere barred by the Eleventh Amendment, the standards of the ADA could nevertheless be enforced “by the United States in actions for money damages.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001). Consistentwith this long-standing principle, this court has also recognized that “[t]he United States is not barred by the Eleventh Amendment from suing a state to enforce federal law and obtain the relief authorized by the ADA.” United States v. Miss. Dep’t of Pub. Safety, 321 F.3d 495, 499 (5th Cir. 2003). Our conclusion in Mississippi Department of PublicSafety is equally applicable in the ADEA context. Notably, two other circuits have specifically rejectedNo. 08-30327

5 challenges to suits brought by the EEOC under the ADEA, holding that the State was not immune from suit under the Eleventh Amendment. See EEOC v. Bd. of Regents of the Univ. of Wis. Sys., 288 F.3d 296, 300–01 (7th Cir. 2002) (holding that sovereign immunity does not bar the EEOC’s lawsuit under the ADEA against the board of regents of a state university system); EEOC v. Ky. Ret. Sys., 16 F. App’x 443, 449 (6th Cir. 2001) (unpublished) (“Because the Eleventh Amendment does not shield a State from suit brought by a federal government agency to enforce a federal law, the district court properly denied Defendants immunity on Eleventh Amendment grounds.”). In light of this clear precedent, the district court properly concluded that the Eleventh Amendment did not bar the EEOC’s lawsuit against ULM under the ADEA. Alternatively, ULM argues that, even if it is not generally immune from ADEA claims brought by a federal agency, the EEOC should not be permitted to seek make-whole relief for the benefit of McGraw. In effect, ULM contends that the EEOC is circumventing the Eleventh Amendment to obtain personal relief for a party barred from suing ULM. We addressed this same argument with respect to the ADA in Mississippi Department of Public Safety, where the United States sought monetary damages and other compensatory relief—including reinstatement with back pay and retroactive benefits—for the alleged dismissal ofa safety patrol trainee in violation of the ADA. 321 F.3d at 497. The district court had dismissed the lawsuit on sovereign immunity grounds, characterizing the United States’ action as essentially an action “on behalf” of the disabled trainee since the United States was not attempting to remedy any “pattern” of discriminatory conduct. I d. We reversed the district court’s dismissal, holding that the United States was entitled to seek any reliefNo. 08-30327

6 authorized by the ADA—including specific relief for the benefit of the trainee—because “the federal government always has a real and substantial federal interest in ensuring the states’ compliance with federal law.” I d. at 499. The Supreme Court, albeit in a different context, has recognized that the E EOC plays an independent public interest role that allows it to seek victimspecific relief—even when such relief could not be pursued by the employee because the claims were subject to a mandatory arbitration agreement: The statute [granting enforcement powers to the EEOC] clearly makes the EEOC the master of its own c ase and confers on the agency the authority to evaluate the strength ofthe public interest at stake. Absent textual support for a contrary view, it is the public agency’s province—not that of the court—to determi ne whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum. EEOC v. Waffle House, Inc., 534 U.S. 279, 291–92 (2002) (cited by Miss. Dep’t of Pub. Safety, 321 F.3d at 499). In Board ofRegentsofthe University ofWisconsin System, the Seventh Circuit similarly relied on Waffle House to reject the state university’s contention that the EEOC’s lawsuit under the ADEA was merely a “private suit dressed in fancy clothes.” 288 F.3d at 300–01 (holding that sovereign immunity did not bar the lawsuit, regardless of the relief sought by the EEOC). Id. at 300–01 ; seealso Ky. Ret. Sys., 16 F. App’x at 448 (rejecting the state employer’s argument that the EEOC’s action, which sought make-whole relief for the benefit o f the state employee, “simply disguise[d] an ADEA suit brought by a private individual and, therefore, [was] forbidden by the Eleventh Amendment”).No. 08-30327

7 ULM correctly notes that, in other contexts, this court has limited the EEOC’s ability to seek damages and other make-whole relieffor private parties barred from pursuing their employment-related claims. See EEOC v. Jefferson Dental Clinics, PA, 478 F.3d 690, 699 (5th Cir. 2007) (holding that the EEOC could not seek make-whole relieffor employees who had already litigated their claims in state court). The J efferson Dental Clinics case involved a private employer that could besubject toprivate lawsuits in federal court and thecourt’s holding was based on the resjudicata effect ofthe prior state courtjudgment in the employees’ case. Id. That holding is not applicable to the present lawsuit, where sovereign immunity bars McGraw’s federal claims and there has been no prior adjudication of the EEOC’s claims. In fact, as we recognized in Jefferson De ntal Clinics: “[i]n the state sovereign immunity context, . . . this court has been wi lling to permit an action by the EEOC that would not have been permitted by a private party.” I d. at 697 (discussing Miss. Dep’t of Pub. Safety, 321 F.3d 495). Accordingly, we hold that the Eleventh Amendment does not bar the EEOC from seeking make-whole relief for the benefit of McGraw. CONCLUSION F or the foregoing reasons, the judgment of the district court is AFFIRMED.