* District Judge of the Western District of Texas, sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10660

ROBERT T NELSON

Plaintiff-Appellant

v.

UNIVERSITY OF TEXAS at Dallas; DAVID E DANIEL, as Administrative

Head of the University of Texas at Dallas; KAREN M JARRELL,

Individually; VIVIAN RUTLEGE, Individually

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:05-CV-1741

Before SMITH and PRADO, Circuit Judges, and YEAKEL, District Judge.*

PRADO, Circuit Judge:

In this case, we must decide whether a claim for reinstatement under the

Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54, is sufficient to

bring a case within the Ex parte Young exception to Eleventh Amendment

sovereign immunity. We conclude that it is and therefore REVERSE the

judgment of the district court and REMAND for further proceedings consistent

with this opinion.

United States Court of Appeals

Fifth Circuit

F I L E D

July 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-10660

1 Daniel is the President of UTD. Jarrell and Rutlege are lower level employees who

interacted with Nelson concerning his FMLA leave.

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Robert Nelson (“Nelson”) was employed by DefendantAppellee the University of Texas at Dallas (“UTD”) for approximately one year.

After being severely injured in a car accident and suffering the suicide of his son,

Nelson went on FMLA leave on April 25, 2005. Nelson’s doctor informed UTD

that Nelson would need intermittent leave for at least four to six weeks in order

to fully recover. UTD approved the request for leave, subject to its standard

FMLA policies, which require notice of the timing and duration of the leave. On

June 7, 2005, and prior to the expiration ofthe twelve weeks of leave guaranteed

by the FMLA, UTD terminated Nelson for absenteeism when he did not call in

or report to work for three consecutive days. Despite Nelson’s request for

reinstatement, UTD refused to reinstate him.

As a result, Nelson filed suit against UTD on August 29, 2005, for

violations of the FMLA, seeking both damages and reinstatement. Nelson soon

amended his complaint to include FMLA claims against Defendants-Appellees

David Daniel (“Daniel”) as the administrative head of UTD, Karen Jarrell

(“Jarrell”), and Vivian Rutlege (“Rutlege”).1 All of the defendants filed motions

to dismiss. The district court granted the motions brought by UTD, Jarrell, and

Rutlege, holding that UTD was protected by Eleventh Amendment immunity

and that Jarrell and Rutlege were not“employers” under the FMLA. Nelson has

not appealed the dismissal of these parties. However, because Nelson sued

Daniel in his official capacity, the district court did not grant Daniel’s motion to

dismiss at that time, given that the motion was premised on a suit against

Daniel in his individual capacity. 

Daniel then filed a motion to dismiss the suit brought against him in his

official capacity on the ground of Eleventh Amendment immunity, which the
No. 07-10660

2 The Supreme Court has noted that state sovereign immunity is broader than that

described by the Eleventh Amendment; thus, referring to “sovereign immunity” as “Eleventh

Amendment immunity” is not always accurate. Alden v. Maine, 527 U.S. 706, 713 (1999). For

our purposes, however, there is no need to distinguish between the two, and we will use the

terms interchangeably. 

3

district court granted. The district court ruled that Nelson’s request for

reinstatement did not fall within the Ex parte Young exception to Eleventh

Amendment immunity because Nelson failed to allege a “continuing violation”

of federal law. The district court reaffirmed its ruling when it denied Nelson’s

motion to vacate the judgment. Nelson timely appealed the dismissal of his suit

against Daniel. 

We have jurisdiction pursuantto 28 U.S.C. § 1291, as a final judgment has

been entered. We review rulings on motions to dismiss de novo. Kennedy v.

Chase Manhattan Bank USA, N.A., 369 F.3d 833, 839 (5th Cir. 2004). 

II. DISCUSSION

Because Nelson sued Daniel in his official capacity as head of UTD,

Nelson’s suit is treated as one against the State of Texas which, absent an

exception to immunity, is barred by the Eleventh Amendment.2 See McCarthy

ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (“[T]he principle of

state-sovereign immunity generally precludes actions against state officers in

their official capacities . . . .”). To avoid Eleventh Amendment immunity, Nelson

relies on the Supreme Court’s decision in Ex parte Young, 209 U.S. 123 (1908),

which created an exception to Eleventh Amendment immunity for claims for

prospective relief against state officials who have been sued in their official

capacities. Thus, the sole question in this appeal is whether Nelson’s request for

reinstatement is sufficient to invoke the Ex parte Young exception to Eleventh

Amendment immunity. 
No. 07-10660

3 Since this case was filed, Congress has added subsection E to § 2612(a)(1), which

provides for leave due to exigencies arising from the fact that the spouse, son, daughter, or

parents of the employee is on active duty in the Armed Forces.

4

A. The FMLA and Sovereign Immunity

Before reaching the merits ofthis appeal, we first pause to make clear that

Nelson’s FMLA claim is, in fact, subject to an Eleventh Amendment immunity

defense. In pertinent part, the FMLA guarantees eligible employees twelve

workweeks of leave during any twelve month period for the following reasons:

(A) Because of the birth of a son or daughter of the employee and in

order to care for such son or daughter.

(B) Because ofthe placement of a son or daughter with the employee

for adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of

the employee, if such spouse, son, daughter, or parent has a serious

health condition.

(D) Because of a serious health condition that makes the employee

unable to perform the functions of the position of such employee.

29 U.S.C. § 2612(a)(1).3In this case, Nelson claims he was entitled to leave

pursuant to subsection D.

This courtin Kazmier v. Widmann declared that the Eleventh Amendment

immunized states from suits for money damages brought under subsections C

and D of § 2612(a)(1). 225 F.3d 519, 526-29 (5th Cir. 2000). Several years later,

however,the Supreme Court ruled that Congress had validly exercised its power

under § 5 of the Fourteenth Amendment to abrogate the states’ Eleventh

Amendment immunity with respect to subsection C by enacting it to combat

historic gender discrimination. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.

721, 735 (2003) (referencing “the States’ record of unconstitutional participation

in, and fostering of, gender-based discrimination in the administration of leave

benefits”). The Court specifically noted evidence that the gender gap regarding

leave was due to “the pervasive sex-role stereotype that caring for family
No. 07-10660

5

members is women’s work.” Id. at 731. Because Hibbs concerned only

subsection C of § 2612(a)(1), the Court made no comment on whether Congress

validly abrogated sovereign immunity under subsection D.

Since that time, the Sixth, Seventh, and Tenth Circuits have recognized

that, despite the ruling in Hibbs, states may still assert an Eleventh Amendment

immunity defense to claims brought pursuant to subsection D. Toeller v. Wis.

Dep’t of Corr., 461 F.3d 871, 877-80 (7th Cir. 2006); Touvell v. Ohio Dep’t of

Mental Retardation & Developmental Disabilities, 422F.3d 392, 400-05 (6th Cir.

2005); Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1164-65 (10th

Cir. 2003). The rationale behind these decisions is that subsection D, which

concerns leave for purposes of self-care as opposed to the care of family members,

does not appear to be in response to any nationwide history of gender

discrimination that would permit Congress to act under § 5 of the Fourteenth

Amendment. See, e.g., Touvell, 422 F.3d at 400-05; Brockman, 342 F.3d at 1164.

Therefore, those circuits concluded that Congress lacked the power to

legislatively remove the states’ immunity under subsection D. Toeller, 461 F.3d

at 879-80; Touvell, 422 F.3d at 405; Brockman, 342 F.3d at 1165.

Although neither party to this appeal challenges whether sovereign

immunity still protects states from liability for suits brought under subsection

D, we agree with the rationale ofthe Sixth, Seventh, and Tenth Circuits thatthe

Supreme Court’s ruling in Hibbs applies only to subsection C. Therefore, this

court’s decision in Kazmier still remains the law of this circuit with respect to

subsection D. Consequently, Daniel may assert the defense of sovereign

immunity in Nelson’s suit against him in his official capacity under subsection

D. 

B. Reinstatement and Ex parte Young

Because the Eleventh Amendment bars suits against states for money

damages incurred as a result of violating 29 U.S.C. § 2612(a)(1)(D), we must
No. 07-10660

6

dismiss Nelson’s claim against Daniel in his official capacity unless Nelson can

demonstrate an exception to immunity. As noted above, Nelson relies on the

exception to Eleventh Amendment immunity created by the Supreme Court in

Ex parte Young, 209 U.S. 123 (1908). Pursuant to the Ex parte Young exception,

the Eleventh Amendment is not a bar to suits for prospective relief against a

state employee acting in his official capacity. Stroman Realty, Inc. v. Wercinski,

513 F.3d 476, 482 (5th Cir. 2008), petition for cert. filed, 76 U.S.L.W. 3611 (U.S.

May 5, 2008) (No. 07-1387). Thus, “prospective injunctive or declaratory relief

against a state [official] is permitted . . . but retrospective relief in the form of a

money judgment in compensation for past wrongs . . . is barred.” Brennan v.

Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988). Nelson argues that his request for

reinstatement is the sort of prospective relief that is permitted by the Ex parte

Young doctrine.

As shown by Nelson, this circuit has always treated Ex parte Young as an

appropriate vehicle for pursuing reinstatement to a previous job position. In

Warnock v. Pecos County, we considered a district court’s dismissal of a § 1983

action on the basis of Eleventh Amendment immunity. 88 F.3d 341 (5th Cir.

1996). There, the plaintiff sought damages, reinstatement, and attorneys’ fees

from two state judges when they failed to reappoint her to a position that she

had previously held. Id. at 343. We agreed that the suit for damages was barred

by the Eleventh Amendment, but held that the claim for reinstatement could go

forward because it was a claim for prospective relief. Id. Specifically, we stated,

Plaintiff’s claim for prospective relief (reinstatement), however, is

not barred by sovereign immunity. The Eleventh Amendment does

not protect state officials from claims for prospective relief when it

is alleged that the state officials acted in violation of federal law. Ex

parte Young, 209 U.S. 123, 155-56, 28 S. Ct. 441, 452, 52 L. Ed. 714

(1908); Edelman v. Jordan, 415 U.S. 651, 664, 94 S. Ct. 1347, 1356,

39 L. Ed.2d 662 (1974); Brennan v. Stewart, 834 F.2d 1248, 1252

(5th Cir. 1988). 
No. 07-10660

7

Id. Thus, we clearly held that a claim for reinstatement was cognizable under

Ex parte Young. 

We followed Warnock inSternadel v.Scott, No. 00-50106, 2001 WL563628

(5th Cir. May 7, 2001), and held that a motion to dismiss on the basis of

Eleventh Amendment immunity should not have been granted when the plaintiff

sought the prospective relief of reinstatement. Id. at *2. Similarly, in Meekins

v. Foster, No. 99-30583, 2000 WL 423356 (5th Cir. Apr. 3, 2000), we noted (and

the parties conceded)that reinstatement“would qualify as acceptable injunctive

relief” for Ex parte Young purposes. Id. at *2. 

Ours is not the only court to reach such a conclusion, as almost every

circuit court has reached the same result. See State Employees Bargaining

Agent Coal. v. Rowland, 494 F.3d 71, 96-98 (2d Cir. 2007); Meiners v. Univ. of

Kan., 359 F.3d 1222, 1232-33 (10th Cir. 2004); Koslow v. Pennsylvania, 302 F.3d

161, 179 (3d Cir. 2002); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir.

2002); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 840-42 (9th Cir.

1997); Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996); Coakley v.

Welch, 877 F.2d 304, 307 n.2 (4th Cir. 1989); Elliott v. Hinds, 786 F.2d 298, 302

(7th Cir. 1986). Therefore, the great weight of case authority clearly supports

treating reinstatement as an acceptable form of prospective relief that may be

sought through Ex parte Young.

C. Daniel’s Arguments

In his argument against application of Ex parte Young in this case, Daniel

asserts that the doctrine requires more than a simple request for prospective

relief. Rather, relying on recent Supreme Court precedent, Daniel argues that

a plaintiff must also allege a “continuing” or “ongoing” violation of federal law

before the Ex parte Young exception can be met. 

In one of its most recent descriptions of the Ex parte Young doctrine, the

Supreme Court said that “a court need only conduct a straightforward inquiry
No. 07-10660

8

into whether [the] complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub.

Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks

omitted and emphasis added). Similarly, the Court has stated that “Young also

held that the Eleventh Amendment does not prevent federal courts from

granting prospective injunctive reliefto prevent a continuing violation of federal

law.” Green v. Mansour, 474 U.S. 64, 68 (1985) (emphasis added); see Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996) (“[W]e have often found federal

jurisdiction over a suit against a state official when that suit seeks only

prospective injunctive relief in order to ‘end a continuing violation of federal

law.’”).

In light of these statements, Daniel asserts that Nelson’s termination and

UTD’s refusal to reinstate him do not constitute a “continuing violation”

sufficient to sustain a claim under Ex parte Young. In making this argument,

Daniel relies upon Supreme Court precedent from employment discrimination

cases which hold that termination is a discrete act. See, e.g., Ledbetter v.

Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2169 (2007) (listing termination

and refusal to hire as discrete acts); Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002) (same). “A discrete retaliatory or discriminatory act

‘occurred’ on the day that it ‘happened.’” Morgan, 536 U.S. at 110. From this,

Daniel concludes that Nelson’s termination was a discrete act that presents no

continuing violation of federal law, meaning that Ex parte Young is not

applicable. 

Daniel’s position is not unreasonable, but we are confronted with years of

caselaw to the contrary. All of the opinions cited above concerning

reinstatement and Ex parte Young were issued after the Supreme Court began

using the continuing violation language in its opinions. See Green, 474 U.S. at

68 (first use of “continuing violation” language by Supreme Court in 1985); see,
No. 07-10660

4 The Seventh Circuit’s decision in Sonnleitner v. York, 304 F.3d 704, 718 (7th Cir.

2002), is not to the contrary. There, the constitutional violation concerned the lack of a

hearing prior to a demotion, rather than the demotion itself. Id. Thus, the court concluded

that the proper remedy would have been to order that a hearing take place. Id. However, the

plaintiff had been permitted to tell his side of the story to his employer, leading the court to

decide that there was no ongoing violation of law with respect to the lack of a hearing. Id.

Consequently, Sonnleitner did not hold that a demotion is not an ongoing violation of federal

law.

9

e.g., Rowland, 494 F.3d at 98 (decided in 2007); Warnock, 88 F.3d at 343 (decided

in 1996). Further, termination has long been considered a discrete act for

employment discrimination purposes. Taylor v. Bunge Corp., 775 F.2d 617, 619

(5th Cir. 1985) (per curiam) (stating that termination is not a “continuing

violation” for limitations purposes in an employment discrimination suit);

Prophet v. Armco Steel, Inc., 575 F.2d 579, 580 (5th Cir. 1978) (per curiam)

(same). Therefore, all of the precedent supporting Daniel’s argument was in

existence at the time that this court and the other circuits concluded that

reinstatement may be pursued through Ex parte Young.

Daniel argues that many of the circuits have simply failed to consider

whether a request for reinstatement satisfies the continuing violation

requirement. While Daniel is correct that this element is often not mentioned,

several circuits have directly addressed the requirement and still concluded that

reinstatement may be pursued through Ex parte Young. See Rowland, 494 F.3d

at 96-98 (concluding that harm caused by elimination of position was “ongoing”

for purposes of Ex parte Young); Carten, 282 F.3d at 396 (deciding that

reinstatement was prospective relief designed to end a continuing violation of

federal law); Doe, 131 F.3d at 840-42 (same); Coakley, 877 F.2d at 307 n.2

(same).4 Further, regardless of whether this court explicitly considered the

ongoing violation requirementin Warnock, we clearly held that“Plaintiff’s claim

for . . . [ ]reinstatement[ ] . . . is not barred by sovereign immunity.” 88 F.3d at

343. Thus, Warnock is the law of this circuit on that issue and, absent a
No. 07-10660

5 We recognize that this opinion treats terminations as ongoing violations of law with

respect to Ex parte Young but not with respect to employment discrimination limitations

issues. Such a seeming inconsistency is unusual, but not unprecedented. The Ex parte Young

doctrine itself represents a similar paradox—that an unconstitutional action by a state officer

may be “state action” for purposes of the Fourteenth Amendment, but not for purposes of the

Eleventh Amendment. Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 685 (1982)

(plurality opinion).

10

Supreme Court or en banc decision, we are bound by its holding. See Foster v.

Quarterman, 466 F.3d 359, 367-68 (5th Cir. 2006), cert. denied, 127 S. Ct. 2099

(2007). 

Daniel attempts to distinguish Warnock and some of the cases from other

circuits by arguing that they concerned the violation of constitutional rights, as

opposed to statutory rights like the FMLA, and that constitutional claims are

construed more expansively. We consider this to be a distinction without

significance. The Supreme Court has never restricted the application of Ex parte

Young to cases involving constitutional law. See, e.g., Verizon Md., 535 U.S. at

645-48 (allowing suit under Ex parte Young for alleged violation of

Telecommunications Act). Indeed, the doctrine itself refers to violations of

“federal law,” not “constitutional law.” See id. at 645. We, therefore, see no

reason to consider unconstitutional terminations differently than terminations

in violation of the FMLA for purposes of Ex parte Young.

In sum, we conclude that, based on our precedent and precedent from a

majority of the circuits, a request for reinstatement is sufficient to bring a case

within the Ex parte Young exception to Eleventh Amendment immunity, as it is

a claim for prospective relief designed to end a continuing violation of federal

law.5 Consequently, the district court should not have dismissed Nelson’s claim

for reinstatement, and we must reverse the district court’s judgment and

remand for further proceedings.
No. 07-10660

11

III. CONCLUSION

For the foregoing reasons, we hold that Nelson’s requestfor reinstatement

is not barred by Eleventh Amendment immunity and that the district court

erred in concluding otherwise.

REVERSED and REMANDED.