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”)1for alleged

violations ofthe Age Discrimination in Employment Act(“ADEA”). ULM moved

to dismiss on Eleventh Amendment immunity grounds, and the district court

denied 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

Clerk
No. 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 of the

University of Louisiana 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 new policy and certain other practices ofthe

university impermissibly discriminated 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 of these cases).

From 2002 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 McGraw the positions he soughtin 2002–2004, in retaliation for his prior

suits, or, alternatively, on the basis of his 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 under
No. 08-30327

2 ULM also appears to argue that McGraw should be barred from proceeding in its state

court suit based on res judicata 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. Its argument relies principally on

Kimel v. Florida Board of Regents, where the Supreme Court examined the

validity of the ADEA’s purported abrogation of the 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 of 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 broad

prophylactic legislation,id. at 91. Therefore, the Court concluded that “Congress
No. 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, itis well-established that sovereign immunity under the Eleventh

Amendment operates only to protect States from private lawsuits—not from

lawsuits by the federal government. See West Virginia v. UnitedStates, 479 U.S.

305, 311 (1987) (“States have no sovereign immunity as against the Federal

Government”); Alden 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 private ADA claims against States were

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). 

Consistent with 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 Public Safety is equally applicable

in the ADEA context. Notably, two other circuits have specifically rejected
No. 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 of a 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. Id. We reversed the district

court’s dismissal, holding that the United States was entitled to seek any relief
No. 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.” Id. at 499.

The Supreme Court, albeit in a different context, has recognized that the

EEOC 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 case and confers on the

agency the authority to evaluate the strength of the public interest

at stake. Absent textual support for a contrary view, it is the public

agency’s province—not that of the court—to determine 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 of Regents of the University of Wisconsin

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; see also 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 of 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 relief for 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 relief for employees who had already litigated their

claims in state court). The Jefferson Dental Clinics case involved a private

employer that could be subjectto private lawsuits in federal court and the court’s

holding was based on the res judicata effect of the prior state court judgment 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

Dental Clinics: “[i]n the state sovereign immunity context, . . . this court has

been willing to permit an action by the EEOC that would not have been

permitted by a private party.” Id. 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

For the foregoing reasons, the judgment of the district court is

AFFIRMED.