1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-16-1996

Blanciak v. Allegheny Ludlum Corp.

Precedential or Non-Precedential:

Docket 95-3055

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Blanciak v. Allegheny Ludlum Corp." (1996). 1996 Decisions. Paper 234.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/234
1 

Tech Init51 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 95-3055 

 

 

 

ROBERT J. BLANCIAK; RAYMOND BOWMAN; WILLIAM BURKETT; 

MARLIN D. BYERS; RICHARD COOK; ROBERT E. DELLEDONNE; 

JACK DELCIMMUTO; RICHARD T. FARAH; DONALD E. HOLMES; 

JAMES MARKYBY; DONALD C. MILLER; HOWARD MUMAU; 

DOMONIC POCETTI; EDWARD E. PRIMACK; ANTHONY RODNICKI; 

WILLIAM D. ROWE; DON SHELLHAMMER; PAUL R. SIBIK; 

JAMES WALKER; THEODORE W. WALKER; FRANCIS N. AMARANTO; 

LEROY A. CALDERONE; RONALD E. CALHOUN; LOUIS ECARAVAGGIO; 

JOSEPH W. CLARK; GEORGE L. FLEEGER; RONALD R. FULTON; 

RICHARD L. GEORGE; JOHN M. GULYAS; JACK C. HESKETH; 

ROBERT HUTCHERSON; ROBERT D. KNABB; BERNARD C. KUMPF; 

WILLIAM JOHN MORDA; JAMES E. PATTY; LAURA G. POSKUS; 

ARTHUR L. RAMER; F. EUGENE SMELTZER; ROBERT L. STEWART; 

WESLEY E. SUMAN; DOUGLAS E. TALMADGE; JACK WILMOT, JR., 

individually and on behalf of all other persons similary situated 

v. 

 

ALLEGHENY LUDLUM CORPORATION; UNITED STEELWORKERS OF 

AMERICA; and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT 

OF LABOR & INDUSTRY; HARRIS WOFFORD, Secretary of Labor 

and Industry; MAURICE NATES; JOHN KRISIAK; STELLA RAVETTO; 

R. C. THOMAS; CHARLES E. SWARTZ, and various JOHN DOE, 

and or JANE DOE(S) 

 

 ROBERT J. BLANCIAK, RAYMOND BOWMAN, 

 JOSEPH W. CLARK; JACK DELCIMMUTO; 

 RICHARD T. FARAH, RICHARD GEORGE; 

 JOHN M. GULYAS; JACK C. HESKETH; 

 DONALD E. HOLMES; ROBERT D. KNABB; 

 JAMES MARKBY; DONALD C. MILLER; 

 JAMES E. PATTY; DOMINIC POCETTI; 

 EDWARD E. PRIMACK; ANTHONY RODNICKI; 

 WILLIAM ROWE; DON SHELLHAMMER; 

 F. EUGENE SMELTZER; ROBERT L. STEWART; 

 DOUGLAS E. TALMADGE and JAMES WALKER, 

 

 Appellants 
2 

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

 

Argued: October 27, 1995 

 Before: STAPLETON, McKEE and GIBSON1, Circuit Judges 

(Filed February 16, 1995) 

 

 JAMES B. LIEBER (ARGUED) 

 Lieber & Hammer 

 5528 Walnut St. 

 Pittsburgh, PA 15232 

 Counsel for Appellants

 ERNEST D. PRAETE 

 Attorney General 

 GLORIA A. TISCHUK (ARGUED) 

 Deputy Attorney General 

 Office of the Attorney General 

 4th Floor, Manor Complex 

 564 Forbes Avenue 

 Pittsburgh, PA 15219 

 Counsel for Appellee

 

OPINION OF THE COURT 

 

McKEE, Circuit Judge

 

1

 The Honorable John R. Gibson, Senior Circuit Judge for 

the Eighth Circuit, sitting by designation. 
3 

We are asked to determine whether the Eleventh Amendment to 

the United States Constitution bars a federal court from 

considering an age discrimination claim against the Commonwealth 

of Pennsylvania, Department of Labor and Industry 

("Commonwealth"), that was acting in its capacity as an 

"employment agency" under the Age Discrimination in Employment 

Act ("ADEA"), 29 U.S.C. § 621, et seq., when the alleged 

discrimination occurred. We must also determine whether the 

Eleventh Amendment bars an equitable award of "front pay" against 

the Commonwealth and its officials under 42 U.S.C. § 1983. 

Because we conclude that Congress has not abrogated the Eleventh 

Amendment's grant of constitutional immunity to states while 

acting as employment agencies under the ADEA, we will affirm the 

district court's finding that plaintiffs' ADEA claims are barred 

by the Eleventh Amendment. Furthermore, because we conclude that 

plaintiffs' equitable "front pay" claims under § 1983 seek 

monetary compensation to remedy a past wrong, we will affirm the 

district court's finding that the Eleventh Amendment bars those 

claims. Finally, we conclude that plaintiffs' remaining 

declaratory and injunctive claims under § 1983 have been rendered 

moot. 

I. 

 The facts relevant to this appeal are easily summarized. In 

January 1988, the United States Steel Corporation ("USX") placed 

its Vandergrift, Pennsylvania plant in an idled status and 

stopped manufacturing or shipping products from the facility. 
4 

Allegheny Ludlum Corporation ("Allegheny Ludlum") negotiated with 

USX and purchased the plant in June, 1988. In order to initially 

staff the facility, Allegheny Ludlum decided to hire fifty-five 

hourly employees from amongst the 125 who had previously worked 

at the plant. Accordingly, Allegheny Ludlum entered into an 

agreement with the United Steelworkers of America ("USWA") 

pursuant to which Allegheny Ludlum established a preferential 

hiring list for former Vandergrift employees who were USWA 

members (the "Agreement"). The Agreement gave Allegheny Ludlum 

the absolute right to select and assign thirty of the initial 

fifty-five hires. The remaining twenty-five were to be selected 

on the basis of continuous service, provided that they 

demonstrated the requisite skills for anticipated tasks. 

 The Job Services offices of the Commonwealth of Pennsylvania 

function as a no-fee employment service to bring employers and 

job seekers together. The offices administer a General Aptitude 

Test Battery ("GATB") for use in referring applicants to 

cooperating companies that are looking for workers. The GATB 

consists of twelve separately timed tests which purportedly 

measure a broad range of occupationally relevant cognitive, 

perceptual and psychomotor skills. In June 1988, Allegheny 

Ludlum requested the New Kensington and Kittanning Job Services 

offices to accept applications and administer GATB tests to those 

individuals on its preferential hiring list. 

 The instant litigation arose when a group of former USX 

employees over the age of forty filed a civil action for damages, 

declaratory and injunctive relief against Allegheny Ludlum, the 
5 

USWA and the Commonwealth of Pennsylvania, Department of Labor 

and Industry, its Secretary and various employees ("the 

Commonwealth"). The Complaint alleged that the staffing of the 

Vandergrift facility violated the Age Discrimination in 

Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; the Fair Labor 

Standards Act ("FLSA"), 29 U.S.C. § 216 et seq.; the Employee 

Retirement Income Security Act, 29 U.S.C. § 1000 et seq.; the 

Labor Management Relations Act of 1947, 29 U.S.C. § 1985; the 

Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et

seq.; and the Due Process Clause of the Fourteenth Amendment, 

actionable under 42 U.S.C. § 1983. Plaintiffs brought suit as a 

class action under 29 U.S.C. § 216(b).2 The complaint alleged 

 

2

 1 The class action was brought ". . .on behalf of all 

other persons similarly situated who are at least 40 years old 

who have been, are being, or will be adversely affected by the 

Defendants' unlawful age discrimination in employment policies 

and practices. The 'Class' which Plaintiffs seek to represent, 

and of which Plaintiffs are themselves members, is composed and 

defined as follows: 

 All persons, male and female, now named or hereafter 

 executing and filing written consents to participate 

 and join in this action, pursuant to 29 U.S.C. §216(b), 

 who were, at any time from on or about 1987-1988 to 

 date: 

 (a) at least 40 years of age; 

 (b) employed by USX at its. . .facility in 

Vandergrift, 

 Pennsylvania; which plant was sold to Allegheny 

 Ludlum; 

 (c) subject to a collective bargaining agreement, and 

 represented by the USWA; 

 (d) involuntarily retired and/or not employed at 

 Allegheny Ludlum for age motivated reasons; 

 (e) subjected to such adverse employment actions as 

 described infra in connection with the Allegheny 

 Ludlum manning program for Vandergrift and nearby 

 facilities. . ." Complaint, ¶ 8. 
6 

that the defendants' had discriminated against the employees in 

the class on the basis of age by administering the GATB. 

 Following discovery, plaintiffs entered a sealed settlement 

agreement and stipulated to the dismissal of all claims against 

Allegheny Ludlum and the USWA. The remaining Commonwealth 

defendants then moved for summary judgment based upon the 

sovereign immunity enjoyed by the Job Services offices of the 

Commonwealth under the Eleventh Amendment.3 The district court 

granted the Commonwealth's motion based upon sovereign immunity, 

and ruled that plaintiffs' remaining injunctive and declaratory 

claims against the Commonwealth had been rendered moot by the 

settlement agreement with Allegheny Ludlum and the USWA. This 

appeal followed. 

II. 

 We have jurisdiction over this appeal pursuant to 28 U.S.C. 

§ 1291. Dismissal of an action based upon sovereign immunity is 

subject to plenary review by this Court. Fitchik v. New Jersey 

Transit Rail Operations, 873 F.2d 655, 658 (3d Cir. 1989), cert

 

 Unlike a Rule 23 class action, a 29 U.S.C. § 216(b) class 

action does not bind those who fit within the class description 

unless they opt in. Title 29 U.S.C. § 626(b) permits the use of 

a 29 U.S.C. § 216(b) opt-in class action in ADEA cases. 

 

3

 Although defendants brought their Eleventh Amendment 

objection by way of a motion for summary judgment under 

Fed.R.Civ.P. 56(b), the Eleventh Amendment is a jurisdictional 

bar which deprives federal courts of subject matter jurisdiction. 

See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-

100, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984). Accordingly, 

the motion may properly be considered a motion to dismiss the 

complaint for lack of subject matter jurisdiction under 

Fed.R.Civ.P. 12(b)(1). 
7 

denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989). The 

district court's decision that this case is moot is also subject 

to plenary review. Northeast Women's Center, Inc. v. McMonagle, 

939 F.2d 57, 61 (3d Cir. 1991). 

III. 

 A. 

The Eleventh Amendment of the United States Constitution 

provides that: 

 The Judicial power of the United States shall not be 

 construed to extend to any suit in law or equity 

 commenced or prosecuted against any one of the United 

 States by Citizens of another State, or by Citizens 

 or Subjects of any Foreign State. 

U.S. Const. amend. XI. The Amendment has been interpreted to 

protect an unconsenting state from "suit in federal court by its 

own citizens as well as those of another state." Pennhurst State 

School v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-08, 79 

L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 

33 L.Ed. 842 (1890). 

 There are, however, certain well-established exceptions to 

the protection of the Eleventh Amendment. Atascadero State 

Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 

L.Ed.2d 171 (1985). If a state waives its immunity and consents 

to suit in federal court, the Eleventh Amendment does not bar the 

action. See e.g., Id. at 234, 105 S.Ct. at 3142; Clark v. 

Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780 

(1883). Moreover, Congress may specifically abrogate the states' 
8 

Eleventh Amendment immunity. See e.g., Fitzpatrick v. Bitzer, 

427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (finding 

abrogation in legislation passed pursuant to § 5 of the 

Fourteenth Amendment); and Pennsylvania v. Union Gas Co., 491 

U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d. 1 (1989) (finding abrogation 

in legislation passed pursuant to the Congress' Article I, § 8 

plenary power over commerce). Here, appellants contend that 

Congress specifically abrogated the sovereign immunity of states 

and all state agencies in amending the ADEA, and that the 

Eleventh Amendment therefore presents no bar to their ADEA claim 

against the Commonwealth. However, the plain language of the 

ADEA defeats this argument. 

 Two conditions must be met before we can decide that 

Congress abrogated the states' Eleventh Amendment immunity in 

enacting or amending the ADEA. First, the congressional 

legislation in question must articulate an unequivocal 

congressional intention to abrogate the sovereign immunity of the 

states. Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 

2401, 105 L.Ed.2d 181 (1989); Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146-47, 87 L.Ed.2d 

171 (1985). On more than one occasion, the Supreme Court has 

said that Congress "must express its intention to abrogate the 

Eleventh Amendment in unmistakable language in the statute 

itself." Atascadero, 473 U.S. at 242, 105 S.Ct. at 3148; 

Dellmuth, 491 U.S. at 230, 109 S.Ct. at 2401 ("[E]vidence of 

congressional intent must be both unequivocal and textual."). "In 

traditionally sensitive areas, such as legislation affecting the 
9 

federal balance, the requirement of clear statement assures that 

the legislature has in fact faced, and intended to bring into 

issue, the critical matters involved in the judicial decision." 

United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 

L.Ed.2d 488 (1971). Second, the Constitution must give Congress 

the power to abrogate the states' Eleventh Amendment immunity. 

The party asserting Eleventh Amendment immunity bears the burden 

of proving its applicability. Christy v. Pennsylvania Turnpike 

Comm., 54 F.3d 1140, 1144 (3d Cir. 1994). The Supreme Court has 

yet to determine if Congress possesses the power to abrogate the 

states' historic Eleventh Amendment immunity when neither 

legislating to enforce the prohibitions of the Fourteenth 

Amendment nor acting to regulate interstate commercial activity 

under the Commerce Clause. 

 Here, we have no trouble resolving the second part of this 

inquiry as the Supreme Court has held the ADEA to be a valid 

exercise of Congress' plenary power to regulate interstate 

commerce under the Commerce Clause. See EEOC v. Wyoming, 460 

U.S. 226, 243, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983). 

Moreover, virtually every court which has addressed the question 

has concluded that the ADEA was validly enacted pursuant to 

Congress' power to enforce section five of the Fourteenth 

Amendment. See e.g., Hurd v. Pittsburg State University, 821 

F.Supp. 1410, 1413 (D.Kan. 1993), aff'd, 29 F.3d 564, 565 (10th 

Cir.), cert denied __ U.S. __, 115 S.Ct. 321, 130 L.Ed.2d 282 

(1994); Bell v. Purdue University, 975 F.2d 422, 425 n.5 (7th 

Cir. 1992); Davidson v. Bd. of Gov. of State Coll. & Univ., 920 
10 

F.2d 441, 443 (7th Cir. 1990); Ramirez v. Puerto Rico Fire 

Service, 715 F.2d 694, 700 (1st Cir. 1983) Arritt v. Grisell, 567 

F.2d 1267, 1271 (4th Cir. 1977); ; Swanson v. Dept. of Health, 

773 F.Supp. 255, 258 (D.Colo. 1991); but see, Black v. Goodman, 

736 F.Supp. 1042, 1045 (D.Mont. 1990). 

 The ADEA, as amended in 1974, makes it unlawful for an 

"employer" to fail or refuse to hire or to discharge or otherwise 

discriminate against any individual because of such individual's 

age. 29 U.S.C. §§ 623(a)(1), 626(b)-(c). The Act defines the 

term "employer" to include "a State or political subdivision of a 

State and any agency or instrumentality of a State or a political 

subdivision of a State," 29 U.S.C. § 630(b)(2), and explicitly 

provides that an "employer" who violates the Act is liable for 

legal and equitable relief. 

 Unless Congress had said in so many words that it was 

 abrogating the states' sovereign immunity in age 

 discrimination cases--and that degree of explicitness 

 is not required, (citations omitted) --it could not 

 have made its desire to override the states' 

 sovereign immunity clearer. 

Davidson, 920 F.2d at 443. 

The statute simply leaves no room to dispute whether states and 

state agencies are included among the class of potential 

defendants when sued under the ADEA for their actions as 

"employers." 

 However, that does not end our inquiry. Plaintiffs agree 

that any ADEA liability in the instant action arises because the 

Commonwealth was acting as an "employment agency," and not in the 
11 

capacity of an "employer" in administering the GATB. The ADEA 

defines an "employment agency" as "any person regularly 

undertaking with or without compensation to procure employees for 

an employer and includes an agent of such person; but shall not 

include an agency of the United States." 29 U.S.C. § 630(c). 

Accordingly, we must decide whether the Eleventh Amendment bars 

ADEA claims brought against a State while acting in its capacity 

as an employment agency. This question is one of first 

impression for this Court, and our research reveals only one 

other court to have directly addressed the issue.4 

 In 1974, Congress explicitly expanded the ADEA definition of 

"employer" to include "a State or political subdivision of a 

State and any agency or instrumentality of a State or a political 

subdivision of a State." 29 U.S.C. § 630(b)(2). However, at the 

same time, Congress failed to similarly expand the statutory 

definition of "employment agency." Congress merely amended that 

language by deleting the italicized portion below: 

 (c) the term "employment agency" means any person 

 undertaking with or without compensation to procure 

 employees for an employer and includes an agent of such 

 person; but shall not include an agency of the United 

 States or an agency of a State or political subdivision 

 of a State, except that such term shall include the 

 United States Employment Service and the system of State 

 and local employment services receiving Federal assistance. 

 

4

 Here, the district court relied on its own precedent in 

Radeschi v. Commonwealth of Pennsylvania, 846 F.Supp. 416 

(W.D.Pa. 1993). In Radeschi, the district court dismissed the 

ADEA claim of a job applicant who sued the Commonwealth of 

Pennsylvania after the state employment agency refused to refer 

him as a result of an aptitude test. The court held that the 

Eleventh Amendment bar remained in place for the Commonwealth 

while acting in its capacity as an employment agency. 846 

F.Supp. at 421. 
12 

Act of April 8, 1974, Pub.L. 93-259, 1974 U.S.C.A.A.N. (93 Stat.) 

78 (codified at 29 U.S.C. § 630). In effect, Congress simply 

deleted the language explicitly excluding state employment 

agencies from the reach of the ADEA. At the same time, however, 

Congress failed to specifically include state actors within the 

definition of "employment agency." Moreover, Congress failed to 

expressly incorporate state actors into the definition of 

"person" used in 29 U.S.C. § 630. Section 630(a) of the ADEA 

defines "person" as "one or more individuals, partnerships, 

associations, labor organizations, corporations, business trusts, 

legal representatives, or any organized group of persons." 

Accordingly, the intent of Congress to abrogate the Eleventh 

Amendment immunity of states while acting as employment agencies 

is not clear. Congress certainly could have amended the 

definition of "employment agency" in the same manner that it so 

clearly amended "employer" in 29 U.S.C. § 630. We can only 

assume that Congress's failure to do so was significant. 

 Appellants contend that it is hardly conceivable that 

Congress, having fully extended ADEA liability to the states, 

would carve out a special immunity for states while engaging in 

employment services. Such a result, they suggest, would not only 

be illogical but unjustifiable on policy grounds. Furthermore, 

appellants point out that state employment agencies are held 

liable for discriminatory practices under the closely analogous 

statutory framework of Title VII, and they therefore urge us to 
13 

be guided by those cases that have decided this issue under Title 

VII.5 

 These arguments, though well-reasoned, miss the point. Our 

inquiry here is severely limited, and we must find congressional 

intent to abrogate sovereign immunity solely from "the 

unmistakable language of the statute itself." Atascadero 473 

U.S. at 242, 105 S.Ct. at 3148. Accordingly, our analysis can 

not expand to encompass the analogy and policy considerations 

that plaintiffs now urge upon us. Though one may question the 

policy justifications for furnishing a special statutory immunity 

to states while engaged in employment services, the ADEA's 

treatment of the question is, at best, ambiguous. The 

limitations of Atascadero, and our traditional constraints 

against acting as a "super legislature" preclude us from reading 

language into this statute that Congress did not enact, and may 

well not have intended. See e.g., City of New Orleans v. Dukes, 

427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) 

("[T]he judiciary may not sit as a superlegislature to judge the 

wisdom or desirability of legislative policy determinations made 

in areas that neither affect fundamental rights nor proceed along 

suspect lines."); see also, Griswold v. Connecticut, 381 U.S. 

 

5

 Title VII defines an "employment agency" as "any person 

regularly undertaking with or without compensation to procure 

employment for an employer or to procure for employees 

opportunities to work for an employer and includes an agent of 

such a person." 42 U.S.C. § 2000e(c). A "person" is 

specifically defined to include "governments, governmental 

agencies. . ." 42 U.S.C. § 2000e(a). Thus, Congress has made it 

"unmistakably clear" that no Eleventh Amendment immunity exists 

for governmental employment agencies and services, state or 

federal, under Title VII. 
14 

479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1964). 

 The statutory language of the ADEA simply does not evince an 

unmistakably clear intention to abrogate the states' Eleventh 

Amendment immunity from suit while acting in their capacity as 

employment agencies under that Act. Accordingly, we will affirm 

the district court's holding that plaintiffs' ADEA claims against 

the Commonwealth are barred by the Eleventh Amendment. 

B. 

Plaintiffs also brought suit against the Commonwealth and 

various of its officials, acting within the scope their official 

capacities, for equal protection and due process violations under 

42 U.S.C. § 1983. Plaintiffs alleged that the Commonwealth's 

administration of the "arbitrary and discriminatory" GATB posed 

an unconstitutional bar to employment with Allegheny Ludlum. 

Since the Commonwealth was not the employer here, it was 

obviously not in a position to reinstate the steelworkers. 

Accordingly, plaintiffs prayed for an equitable award of "front 

pay" as their remedy. The district court correctly held that 

plaintiffs' § 1983 "front pay" claims were barred by the Eleventh 

Amendment. 

 The Supreme Court has held that States are not "persons" 

within the meaning of § 1983 and, therefore, cannot be among 

those held liable for violations of the civil rights statute. 

Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 

S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) ("Section 1983 provides a 

federal forum to remedy many deprivations of civil liberties, but 
15 

it does not provide a federal forum for litigants who seek a 

remedy against a State for alleged deprivations of civil 

liberties."). Since Congress expressed no intention of 

disturbing the states' sovereign immunity in enacting § 1983, 

these suits, when brought against a state, are barred by the 

Eleventh Amendment. Id. at 58, 109 S.Ct. at 2310; Quern v. 

Jordan, 440 U.S. 332, 339-346, 99 S.Ct. 1139, 1144-1148, 59 

L.Ed.2d 358 (1979). Accordingly, plaintiffs' claims for "front 

pay" must fail. 

 The analysis under the Eleventh Amendment in a § 1983 suit 

is less straightforward, however, when a state official (as 

opposed to the state itself) is named as defendant. Papasan v. 

Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 

(1986). In Will, the Supreme Court held that state officials 

acting in their official capacities are not "persons" under 

§1983. 491 U.S. at 71, 109 S.Ct. at 2312 ("A suit against a 

state official in his or her official capacity. . .is no 

different from a suit against the State itself."). Nevertheless, 

in certain circumstances, those officials may still be subject to 

federal suit, despite the Eleventh Amendment, under the narrow 

exception of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 

714 (1908). 

 In Ex parte Young, the Supreme Court held that the Eleventh 

Amendment did not bar a federal court action to enjoin the 

Attorney General of Minnesota from enforcing a state statute 

claimed to violate the Fourteenth Amendment. 209 U.S. at 166-

168; 28 S.Ct. at 456-457. The only relief awarded in Ex parte 
16 

Young was prospective, injunctive relief; requiring the Attorney 

General to conform his future, official conduct to the dictates 

of the Fourteenth Amendment. The Supreme Court reasoned that the 

actions of a state official taken pursuant to an unconstitutional 

state enactment could not be regarded as "official or 

representative" since the underlying state authorization for 

these actions would be void under the Constitution. Ex parte 

Young, 209 U.S. at 160, 28 S.Ct. at 454 ("If the act which the 

state attorney general seeks to enforce be a violation of the 

Federal Constitution. . .he is in that case stripped of his 

official or representative character. . ."). Accordingly, the 

state official, although formally acting in an official or 

representative capacity, may nevertheless be sued in federal 

court. 

 The applicability of Ex parte Young has been tailored by the 

Supreme Court "to conform as precisely as possible to those 

specific situations in which it is necessary to permit the 

federal courts to vindicate federal rights and hold state 

officials responsible to the supreme authority of the United 

States." Papasan, 478 U.S. at 277, 106 S.Ct. at 2940 (citing

Pennhurst, 465 U.S. at 105, 104 S.Ct. at 910). 

 Young has been focused on cases in which a violation of 

 federal law by a state official is ongoing as opposed to 

 cases in which federal law has been violated at one time or 

 over a period of time in the past as well as on cases 

 in which the relief against the state official directly 

 ends the violation of federal law as opposed to cases in 

 which that relief is intended indirectly to encourage 

 compliance with federal law through deterrence or directly 

 to meet third-party interests such as compensation. 
17 

Papasan, 478 U.S. at 277-278, 106 S.Ct. at 2940. Accordingly, 

relief that essentially serves to compensate a party injured in 

the past by the action of a state official, even though styled as 

something else, is barred by the Eleventh Amendment. See e.g., 

Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 

371 (1985); Edelman v. Jordan, 415 U.S. 651, 664-668, 94 S.Ct. 

1347, 1356-1358, 39 L.Ed.2d 662 (1974). On the other hand, 

"relief that serves directly to bring an end to a present, 

continuing violation of federal law is not barred by the Eleventh 

Amendment even though accompanied by a substantial ancillary 

effect on the state treasury." Papasan, 478 U.S. at 278, 106 

S.Ct. at 2940 (citing Milliken v. Bradley, 433 U.S. 267, 289-290, 

97 S.Ct. 2749, 2761-2762, 53 L.Ed.2d 745 (1977); Edelman, 415 

U.S. at 667-668, 94 S.Ct. at 1357-1358). 

 In the instant case, appellants characterize their § 1983 

actions as equitable claims for prospective relief only, i.e., 

"front pay" damages, but that label is of no importance. This 

Court must look to the substance rather than the form of the 

relief requested to determine whether appellants' claims are 

barred by the Eleventh Amendment. Papasan, 478 U.S. at 279, 106 

S.Ct. at 2940-2941. 

 In their complaint, plaintiffs' § 1983 "front pay" claims 

targeted the official acts of Job Service employees in 

administering the GATB and assisting in the hiring of employees 

for the Allegheny Ludlum facility. Complaint, ¶ 110-120, 143-

144. In pressing those claims before this Court, counsel for 

appellants argues that "the GATB posed an unconstitutional bar to 
18 

[the steelworkers'] employment. . .[and] harmed them in that they 

did not receive jobs with Allegheny Ludlum." Appellant's Brief 

at 39. 

 We find appellants' § 1983 "front pay" claims to be neither 

prospective nor equitable as they have been presented to this 

court. Appellants' specific allegations target past conduct, and 

the "front pay" remedy is not intended to halt a present, 

continuing violation of federal law. Rather than vindicating 

federal rights by holding state officials accountable to the 

Constitution, we believe that "front pay" relief, under the 

circumstances of this case, would provide nothing more than 

compensatory damages which would have to be paid from the 

Commonwealth's coffers. Plaintiffs' request for "front pay" does 

not, therefore, fall within the boundaries of permissible relief 

defined by Ex Parte Young and we therefore affirm the district 

court's holding that these claims are barred by the Eleventh 

Amendment. 

C. 

 Finally, plaintiffs advanced claims for declaratory and 

injunctive relief against the Commonwealth and various of its 

officials under 42 U.S.C. § 1983. Plaintiffs requested the 

district court "to both declare the administration of the GATB 

test unlawful and enjoin the Commonwealth from any further 

administration of it." Appellant's Brief at 42. After reviewing 

plaintiffs' sealed settlement agreement with Allegheny Ludlum and 

the USWA, the district court concluded that plaintiffs had 
19 

already attained all the relief sought in this litigation, and it 

dismissed these claims as moot. Appellants argue that they have 

a sufficiently cognizable interest in the continuing adverse 

impact of the GATB to satisfy the requirements for standing on 

their declaratory and injunctive claims. They suggest: 

 Appellants' GATB scores will follow them all of 

 the days of their lives, and throughout the course 

 of their working lives, unless Commonwealth's use 

 of the GATB test is enjoined. 

 Appellants may not be able to work in the future 

 because their GATB results may preclude them 

 getting a job. The test results become part of 

 their records. . .and cannot be changed. 

Appellants' Brief at 43-44. Appellants claim that poor GATB 

results are "much like a scarlet letter." Id. at 44. However, 

Hester Prynne's fall from grace does not suggest that the 

district court erred. 

 Generally speaking, a case becomes moot when the issues are 

no longer live or the parties lack a cognizable interest in the 

outcome. Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 

1951, 23 L.Ed.2d 491 (1969). Article III's "case or controversy" 

requirement prevents federal courts from deciding cases that are 

moot. See e.g., Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 

S.Ct. 391, 394 n.3, 11 L.Ed.2d 347 (1964). If developments occur 

during the course of adjudication that eliminate a plaintiff's 

personal stake in the outcome of a suit or prevent a court from 

being able to grant the requested relief, the case must be 

dismissed as moot. See e.g., Rosetti v. Shalala, 12 F.3d 1216, 

1224 (3d Cir. 1993); Brock v. International Union, UAW, 889 F.2d 
20 

685 (6th Cir. 1989); United States Parole Commission v. 

Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 

(1980) (The interest required of a litigant to maintain a claim 

under the mootness doctrine is the same as that required to 

attain standing). 

 The ultimate question before us is whether appellants' 

declaratory and injunctive claims pertaining to the 

Commonwealth's administration of the GATB have been rendered too 

speculative, hypothetical or abstract to warrant further judicial 

review. "Past exposure to illegal conduct does not in itself 

show a present case or controversy. . .if unaccompanied by any 

continuing, present adverse effects." O'Shea v. Littleton, 414 

U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974). 

Accordingly, in the aftermath of the steelworkers' settlement 

agreement with Allegheny Ludlum and the USWA, appellants must 

demonstrate some injury, or threat thereof, "of sufficient 

immediacy and ripeness to warrant judicial intervention." See

Warth v. Seldin, 422 U.S. 490, 516, 95 S.Ct. 2197, 2214, 45 

L.Ed.2d 343 (1975). This determination "depends in large part on 

a uniquely individualized process. . .centered on the facts and 

parties of each case." See 13A WRIGHT, MILLER & COOPER: FEDERAL 

PRACTICE AND PROCEDURE, § 3533.5 (1984). 

 We believe adjudication of appellants' remaining declaratory 

and injunctive claims is not only barred by Article III but 

foreclosed by prudential concerns as well. In the district 

court, appellants adduced evidence that GATB results become part 

of an employee's permanent record and that more than one thousand 
21 

Pennsylvania employers, including numerous steel companies, 

utilize the exam as an important job screening device. Moreover, 

evidence indicated that one appellant, Richard Farah, may not 

have been hired in the past by a steel company which utilizes the 

GATB to screen applicants.6 Accordingly, appellants argue that 

continued use of the exam would engender a cognizable danger of 

future harm in the Pennsylvania job market. 

 Under the totality of circumstances here, we cannot agree. 

In Warth, the Supreme Court addressed the intervention of an 

association of construction firms in a suit in which the 

plaintiffs alleged that a town's zoning ordinance violated the 

Fourteenth Amendment. The association claimed that the ordinance 

deprived some of its members of business opportunities and 

revenues. The Court reasoned as follows in finding that the 

association lacked standing: 

 The complaint refers to no specific project of any 

 of [the association's] members that is currently 

 precluded. . .There is no averment that any member 

 has applied to respondents for a building permit or 

 a variance. . .Indeed, there is no indication that 

 respondents have delayed or thwarted any project 

 currently proposed by [the association's] members 

 . . . 

Warth, 422 U.S. at 516, 95 S.Ct. at 2214. 

 In the instant case, none of the appellants claim a present 

injury from the Commonwealth's administration of the GATB.7 No 

 

6

 Mr. Farah was subsequently hired by Allegheny Ludlum 

pursuant to the Settlement Agreement. 

7

 Although appellants do not specifically advance such an 

argument, it may be suggested that appellants suffer a present 

injury from the Commonwealth's continued use of the GATB in the 

form of diminished career expectations. We need decide whether 
22 

appellant claims to be seeking a job in Pennsylvania that would 

require the GATB. Moreover, it appears that Richard Cook, the 

only appellant to have an active registration with the appellee 

Commonwealth Job Service was referred to a job opening. In 

short, there is no hint in the record of any present or imminent 

future harm from the Commonwealth's alleged conduct. Any 

relevant injury that may befall any of the appellants is 

contingent upon a host of occurrences, each of which is just too 

speculative to fulfill the requirement of a present "case of 

controversy." The record does not indicate that any of the 

appellants are currently unemployed or, for any other reason, are 

currently seeking employment. Moreover, to be affected by the 

practice sought to be enjoined, an appellant seeking employment 

would have to seek it in Pennsylvania, register with the 

Commonwealth Job Service and apply for a position that requires 

the GATB. The Supreme Court has repeatedly recognized that 

claims predicated upon such speculative contingencies afford no 

basis for finding the existence of a continuing controversy as 

required by Article III. See e.g., Rizzo v. Goode, 423 U.S. 362, 

371-73, 96 S.Ct. 598, 604-05, 46 L.Ed.2d 561 (1976); DeFunis v. 

Odegaard, 416 U.S. 312, 320 n.5, 94 S.Ct. 1704, 1707 n.5, 40 

L.Ed.2d 164 (1974). Accordingly, we cannot conclude that 

appellants have demonstrated any injury, or threat thereof, "of 

 

such an abstract expectation can give rise to a "case or 

controversy." See e.g., Schlesinger v. Reservists Committee to 

Stop the War, 418 U.S. 208, 216-227, 94 S.Ct. 2925, 2930-2935, 41 

L.Ed.2d 706 (1974) (Discussing the distinction between injury in 

the abstract, which does not confer standing, and concrete 

injury). 
23 

sufficient immediacy and ripeness" to satisfy the jurisdictional 

requirements of the federal courts. Warth 422 U.S. at 516, 95 

S.Ct. at 2214. Moreover, even if appellants' remaining 

claims were not constitutionally moot, this Court would have 

ample reason to exercise its discretionary power to withhold the 

requested relief on prudential grounds. "The discretionary power 

to withhold injunctive and declaratory relief for prudential 

reasons, even in a case not constitutionally moot, is well 

established." S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir. 

1987); see also, United States v. W.T. Grant, 345 U.S. 629, 73 

S.Ct. 894, 97 L.Ed. 1303 (1953); A.L. Mechling Barge Lines, Inc. 

v. U.S., 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961). For 

many of the same reasons articulated by the Fourth Circuit Court 

of Appeals in Spangler, we believe prudence would require this 

Court to withhold any declaratory or injunctive relief under the 

present circumstances. In Spangler, the parents of two 

handicapped children brought a § 1983 action for declaratory and 

injunctive relief against the North Carolina State Board of 

Education for the refusal of its hearing officers to award 

tuition reimbursements as a remedy for violations of the 

Education of Handicapped Act, 20 U.S.C. § 1400 et seq. ("EHA"). 

The district court granted the parents' motion for summary 

judgment. While the appeal was pending, the parents reached a 

settlement agreement with the Asheboro City Board of Education. 

Under the terms of the agreement, the parents dismissed all their 

claims against the City Board in return for the City Board's 

agreement to pay their accrued tuition expenses. The State Board 
24 

was not a party to the agreement. Nevertheless, in light of the 

change in circumstances, the court concluded that the parents' 

remaining declaratory and injunctive claims against the State 

Board should be treated as moot for prudential reasons. Spangler, 

832 F.2d at 297. 

 The court reached this result for three reasons. First, 

since the parents had already received tuition reimbursement for 

all past tuition expenses incurred and were not currently paying 

tuition that was subject to reimbursement because of the 

placement of their children in an acceptable public school 

program, they had no imminent need for a hearing on entitlement 

to tuition reimbursement. Id. at 297. Second, the presence of 

complicated and sensitive Eleventh Amendment issues persuaded the 

court that it "would be imprudent to address the merits of this 

appeal now that the basic claim. . .ha[d] been settled." Id. at 

298. Finally, the court believed that the issues raised did not 

require immediate resolution as "capable of repetition yet likely 

to evade review." Id. at 298. Accordingly, the court exercised 

its discretionary power to treat the appeal as moot on prudential 

grounds. 

 In the instant appeal, we are presented with similar 

Eleventh Amendment concerns in the context of a case in which 

reinstatement and/or compensatory damages -- the ultimate object 

of the steelworkers' underlying action -- has already been 

supplied by virtue of a settlement agreement. Consequently, we 

believe that resolution of this sensitive constitutional question 
25 

would be better left to a court presented with a more concrete 

and immediate dispute. 

 Accordingly, we will affirm the district court's conclusion 

that plaintiffs' declaratory and injunctive relief claims against 

the Commonwealth and various of its officials under § 1983 are 

moot. 
26 

IV. 

 For the foregoing reasons, we affirm the judgment of the 

district court. 
27