The HONORABLE JOSEPH F. BATAILLON, United States Dis trict Judge for * the District of Nebraska, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2302

___________ John Humenansky, *
* Plaintiff - Appellant, *
* United States of America, * * Appeal from the United States Intervenor on Appeal, * District Court for the
* District of Minnesota.
v. *
* Regents of the University of Minnesota, *
* Defendant - Appellee, *

___________ Submitted: March 9, 1998 Filed: August 11, 1998

___________ Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, District Judge. *

___________ LOKEN, Circuit Judge.

The Elevent

h Amendment bars federal court jurisdiction over a suit between an unconsenting State and one of its citizens unless C ongress has effectively abrogated the State’s Eleventh Amendment immunity. See Edelman v. Jordan , 415 U.S. 651, 662-63 (1974). The University of Minnesota is “an instrumentality of the state” entitled toThe HONORABLE PAUL A. MAGNUSON, Chi ef Judge of the United States 1 District Court for the District of Minnesota.
-2- invo ke Minnesota’s Eleventh Amendment immunity. See Treleven v. University o f Minnesota , 73 F.3d 816, 818-19 (8th Cir. 1996). John Humenansky brought this action in federal court, alleging that the University violated the Age Discrimination i n Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. , when it laid him off in 1994. The district court dismissed, concluding that the suit is barred by the Eleventh Amendment

1 beca use Congress neither intended to abrogate Eleventh Amendment immunity no r acted un der § 5 of the Fourteenth Amendment in enacting 1974 amendments tha t extended the ADEA to cover public employers. Humenansky appeals , supported by the United States as intervenor. We affirm.
To determine whether a federal statute abrogates Eleventh Amendment immunity, we ask “first, w hether Congress . . . unequivocally expressed its intent to abrogate the immunity, and second, whether Congress . . . acted pursuant to a valid exercise o f power.” Seminole Tribe v. Florida , 116 S. Ct. 11 14, 1123 (1996). The practical import of this inquiry is narrow, affectingonly whether States may be sued in federal court for ADEA violations. We review these questions of law de novo

.

A. Co ngressional Intent To Abrogate. The power to abrogate Eleventh Amendment immunity “implicates the fundamental constitutional balance between the Federal Government and the States.” Therefore, “Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself. ” A t ascadero State Hosp. v. Scanlon , 473 U.S. 234, 238, 243 (1985). The statute need not explicitly reference sovereign immunity or the Eleventh Amend ment. See Dellmuth

v. Muth , 491 U.S. 223, 233 (1989) (Scalia, J., concurring). But its text must contai n “u nmistakably clear” language that States may be sued in federal court. A genera l authorization for su it in federal court is not enough. See Seminole Tribe , 116 S. Ct. at 1123-24.-3-

The ADEA prohibits age discriminat ion in employment. The statute has its own recitation of prohibited conduct and covered employers. S ee 29 U.S.C. §§ 623, 630(b). But it co ntains a hybrid enforcement mechanism: 29 U.S.C. § 626(c) authorize s aggriev ed persons to sue “in any court of competent jurisdiction” for relief under th e ADEA, wh ile 29 U.S.C. § 626(b) provides that the ADEA “shall be enforced i n accordance with the powers, remedies, and procedures provided in” the Fair Labo r Standards Act (FLSA). Among the cross-referenced FLSA enforcement statutes is 29 U.S.C. § 216(b), which authorizes aggrieved employees to sue for damages an d liquidat ed damages “in any Federal or State court of competent jurisdiction.” Se e generally Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 125 (1985).

Initial ly, both the FLSA and the ADEA excluded States and their politica l subdiv isions from the statutory definitions of covered employers. In 1966, Congres s amended the FLSA definition of employer to include certain state and local employees. The S upreme Court held in Employees of the Dept. of Public Health & Welfare v

. Missouri , 411 U.S. 279 , 285 (1973), that this amendment did not evidence sufficiently clear congressional intent to abrogate Eleventh Amendment immunity because Congress did not correspondingly amend the enforcement provision, 29 U.S.C. § 216(b):

[W]e have found not a word in the history of the 1966 amendments t o indicate a purpose of Congress to make it possible for a citizen of tha t S t ate or another State to sue the State in the federal courts. . . . It would

. . . be surprising . . . to infer that Congress deprived Missouri of he r constitutional immunity without changing the [provision] under which she could not be sued or indicating in some way by clear language that th e constitutional immunity was swept away.
Congress re sponded in 1974 by amending § 216(b) to permit actions “against an y employer (including a public a gency) in any Federal or State court .” Pub. L. No. 93- 259, § 6, 8 8 Stat. 61 (emphasis added). The amendment was intended to overturn the-4-

Eleventh A mendment ruling in Employees

. See H.R. R EP

. N O

. 93-259, reprinted i n 197 4 U.S.C.C.A.N. 2811, 2853. Though the intent-to-abrogate inquiry focuses o n statutor y text, not legislative history, we agree with numerous other circuits that th e 1974 amendments to § 216(b) reflect an unmistakably clear textual intent to abrogate EleventhAmendment immunity from FLSA suits in federal court. See, e.g. , Reich v. State of New York , 3 F.3d 581, 590-91 (2d Cir. 1993); Hale v. State of Arizona , 993 F.3d 1387, 1391-92 (9th Cir. 1993); cf. Fitzpatrick v. Bitzer , 427 U.S. 445, 449 n.2 , 452 (1976) (“congressional authorization to sue the State . . . clearly present” whe n Title VII amended to allow sui ts against “governments [and] governmental agencies”).

At the same time Congress amended the FLSA’s § 216(b), it expanded th e ADEA’s 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.” Pub. L. No. 93-259, § 28, 88 Stat . 74, codified at 29 U.S.C. § 630(b)(2). Because § 626(b) of the ADEA incorporates § 216(b), t he 1974 amendments amended part of the ADEA enforcement mechanism as well as the definitio n of employer. But left unamended was 29 U.S.C. § 626(c) -- it still contains only a general authorization to enforce the ADEA “in any court of competent jur isdiction.” Thus, we face a conundrum. If we look only at § 626 (c), the 1974 ADEA amendments are just like the 1966 FLSA amendments at issue in E mployees -- Congress now covered public employers but did not expressl y allow t hem to be sued in federal court. On that basis, we would conclude no intent to abr ogate, following the reasoning in Employees as reinforced by the Court’s late r decisions in Atascadero and Dellmuth . On the other hand, if we look at the ADEA’s enforcement scheme from the perspect ive of its cross-reference to the FLSA, Congress cured the abrogation deficiency found in Employees by amending § 216(b) at the same time § 630(b)(2) was amended to include States and other public employers.
Quite properly, the United States a s intervenor emphasizes the 1974 amendment to § 216( b) in arguing clear intent to abrogate, while the University counters b y emphasizing the lack of an amendment to § 626(c). Both are weighty argumentsSee Keeton v. University of Nevada System , F.3d , 1998 WL 381432 at 2 *2 (9th Cir. July 10, 1998); Goshtasby v. Board of Trustees , 141 F.3d 761, 765-66 (7th Ci r. 1998); Hurd v. Pittsburg State Univ. , 109 F.3d 1540, 1544 (10th Cir. 1997) ; Blanciak v. Allegheny Ludlum Corp. , 77 F.3d 690, 695 (3d Cir. 1996) (dictum) ; Santiago v. New York State Dep’t of Correctional Servs. , 945 F.2d 25, 31 (2nd Cir. 1991) (dictum), cert. denied , 502 U.S. 1094 (1992); Ramirezv. Puerto Rico Fire Serv. , 715 F.2d 694, 701 (1st Cir. 1983); but see Kimel v. State of Florida Board of Regents , 13 9 F.3d 1426 (11th Cir. 1998) (divided panel holds Eleventh Amendment immunity not abrog ated, one judge concluding there was no clear intent to abrogate, and on e judge concluding there was no power to abrogate).
-5- pointing i n diametrically opposite directions. Congress in 1974 focused on th e Employees decision, i ntended to legislatively overrule it as to the FLSA, and amended the ADEA t o cover States and their political subdivisions. If Congress intended t o abrogat e Eleventh Amendment immunity for the ADEA as well as the FLSA, an d recognized that Employees required that intent to abrogate be reflected by amending the enfo rcement

provisions, why not amend § 626(c), the ADEA provision that mos t directly addresses the question of federal court jurisdiction? Th ere are only two rational answers to that question -- no intent to abrogate for the ADEA, or legislative oversight, whichis not a proper basis for finding “unmistakably clear” intent to abrogate in th e statute’s text. See Dellmuth , 491 U.S. at 232 (“permissible inference” of an intent to abrogat e is not enough). Thus, we conclude the district court correctly held that th e ADEA’s text does not reflect an unmistakably clear intent to abrogate Eleventh Amendm ent

immunity. We disagree with other circuits that have found an intent t o abrogate without analyzing this aspect of the 1974 amendments. 2

B. Congressional power to abrogate. Even if the ADEA’s text contained a sufficiently clear expression of intent to abrogate, we concl ude that Congress lacked the power to abrogate Eleventh Amendment immunity. The Commerce Clause, part o f Artic le I of the Constitution, cannot be used to abrogate the Eleventh Amendment’ s limitation on the Ar

ticle III jurisdiction of the federal courts. See Seminole Tribe , 116-6-

S. Ct. at 1 131-32, overruling Pennsylvania v. Union Gas Co. , 491 U.S. 1 (1989)

. However, § 5 of the Fourteenth Amendment is a valid basis for abrogating Eleventh Amendment immunity because that Amendment was intended to“fundamentally alter[] th e balance of state and federal power struck by the Constitution.” Id. at 1125, citing Fitzpatrick , 427 U.S. at 452-56. Section 5 “is a positive grant of legislative power” to enforce § 1 of the Fourteenth Amendment. City of Boerne v. Flores , 117 S. Ct. 2157, 2163 (1997), quoting Katzenbach v. Morgan , 384 U.S. 641, 651 (1966). Those sections provide in relevant part:
Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immuni ties of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law; nor d eny to any person within its jurisdiction the equal protection of the laws.

* * * * *

Se ction 5. The Congress shall have power to enforce, by appropriat e legislation, the provisions of this article.

The ADEA has been upheld as a valid exercise of Congress’ power under th e Commerce Clause. See E.E.O.C. v. Wyoming , 460 U.S. 226 (1983). The power-toabrogate que stion turns on whether the ADEA is also a valid exercise of Congress ’ powers under § 5. “Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the F o urteenth Amendment.” Gregory v. Ashcroft , 501 U.S. 452, 469 (1991) (quotation

om itted). Though Congress need not expressly articulate an intent to legislate unde r § 5, a court m

ust “be able to discern some legislative purpose or factual predicate that support s the exercise of that power.” Wyoming , 460 U.S. at 243 n.18. The issue has been more clearly framed by the Supreme Court’s recent decision in City of Boerne ,Compar e Kimel , 139 F.3d at 1445-48 (Cox, J., concurring), with Goshtasby , 3 141 F. 3d at 769-72, and Keeton , 1998 WL 381432 at *2-3. See also Hurd , 109 F.3d at 1544-46 , aff’g 821 F. Supp. 1410, 1412 (D. Kan. 1993); Blanciak , 77 F.3d at 695; Ramirez , 715 F.2d 694, 698-700 (1st Cir. 1983); Arritt v. Grisell , 567 F.2d 1267 , 1270-71 (4th Cir. 1977).
-7- in which the Court invalidated the Religious Freedom Restoration Act of 1993 a s exceeding Congress’ authority under § 5.

Hume nansky and the United States argue that the ADEA is a valid exercise o f Congress’ § 5 power. The Fourteenth Amendment’s Equal Protection Clause protects against invidious government al discrimination on grounds other than race. The ADEA prohibi ts invidious discrimination against government employees on account of thei r age. Therefore, they argue, ADEA is “plainly adapted” to enforcing the Equa l Protection Clause. Katzenbach v. Morgan , 384 U.S. at 651. They further argue that, in enforcing the Fourteenth Amendment, Congress is not limited to prohibiting what the courts have declared unconstitutional under the Equal Protection Clause. Indeed , Congress can legislate a stricter standard of conduct than that required by the Equa l Protection Clause when legislating pursuant to § 5. The only limit on Congress’ § 5 power to enforce the

Equal Protection Clause with “appropriate legislation” is that the federal statu te must be “consistent with the letter and spirit of the constitution.” Id. at 656. A number o f circuit decisions have accepted this argument, but the three circuits to consider the issue since City of Boerne have reached conflicting conclusions. 3

If this argument is c orrect, Congress’ § 5 power to enforce the Equal Protection Clause is virtually unlimited, because it is not tied to enforcing judicially recognize d equal protection viol ations. Age is not a suspect class entitled to a heightened level of equal protection scrutiny. See Massachusetts Bd. of Retirement v. Murgia , 427 U.S. 307 (1976). In Murgia , the Court upheld a mandatory retirement age for Massachusetts state police officers, concluding the statute “ clearly [met] the requirements of the EqualDepending upon the situation, adverse employment action may be justified to 4
save money by eliminating a higher paid worker who is not more productive, to meet the physic al demands of a job, to adapt more quickly to rapidly changing technology, to promote healthy turnover of a work force, to satisfy customer de mands for a younger work force, and so forth. These are rationales that Congress can reject using it s legislative powers under the Commerce Clause, but they are sufficiently valid in most circumstance s to withstand Equal Protection Clause review. In sum, the ADEA does not primarily target equal protection violations, nor are its prohibitions tailored t o meeting equal protection concerns.
-8- Pro tection Clause” because it rationally furthered the reasonable state objective o f ensuring a physically fit police force. 427 U.S. at 314-15. In Vance v. Bradley , 44 0 U.S. 93 (1979), the Court upheld a federal statute mandating that Foreign Servic e of ficers retire at age sixty against an equal protection challenge, concluding th e classification was valid under rational basis review. The Equal Protection Claus e applies not onlyto statutes such as those at issue in Murgia and Vance , but also to the day-to-day employment decisions of a myriad of state officers and agencies. But these isolated executive actions are unconstitutional on ly if they are the product of intentional discrimination that “fail[s] to comport with the requirements of equal protection.” Batra v. Board of Regents , 79 F.3d 717, 721 (8th Cir. 1996). Thus , there has been no judicial definition of invidio us, that is, unconstitutional age discrimination, and given the many economic and social factors that may justify adverse employment action based upon age in a partic ular situation, it seems likely that only a few isolated, egregiously irrational 4 instances of age discrimination would violate the Equal Protection Clause. However, under this broad interpretation of § 5, Congress defines what is prohibited, and so long

as it i s legislating to protect a class of government employees against what Congres s defines as “in vidious discrimination,” it is acting “consistent with the letter and spirit” of the Equal Protection Clause.
Not surprisingly, t

here are persuasive indications that the Supreme Court would not embrace this expansive view of Congress’ § 5 power to enforce the Equal Protection Clause. When the Court upheld the ADEA as valid under the Commerce-9-

Clause in Wyoming , the narrow majority expressly declined to decide this § 5 issue

. See460 U.S. at 243 & n.18. But the four dissenters reached the issue and concluded the ADEA exceeds Congress’ § 5 power. After explaining that the Wyoming statut e in question, like the mandatory reti rement programs at issue in Murgia and Vance , was not invalid under the Fourteenth Amendment, the dissenters concluded:
[T]he Age Act can be sustained only if we assume first, that Congress can define rights wholly independent of our case law, and second, tha t Congress has done so here. I agree with neither proposition. Allowing Congress to prote ct constitutional rights statutorily that it has independently defined fundamentally alters our scheme of government.

. . . There is no hint in the body of the Constitution ratified in 1789 or in the rel evant Amendments that every classification based on age i s outl awed. Yet there is much in the Constitution and the relevan t Amendments to indicate th at states retain sovereign powers not expressly surrendered, and

these surely include the power to choose the employees they feel are best able to serve and protect their citizens.

And even were we to assume, arguendo , that Congress coul d redefine the Fourteenth Amendment, I would still reject the power o f Congress to impose the Age Act on the states when Congress, in the same year that the Age Act was extended to the states, passed mandator y retirem ent

legislation of its own for law enforcement officers an d firefighters.
460 U.S. at 262-63 (Burger, C.J., dis senting). Similarly, Justice Stewart, concurring in part for himself, Chief Justice Burger, and Justice Blackmun in Oregon v. Mitchell , 400 U.S. 112, 2 96 (1970), explained that § 5 gives Congress “the means of eradicatin g situations that amount to a violation of the Equal Protection Clause,” but not the power “to determine as a matter of substantive constitutional law what sit uations fall within the ambit of the clause.”In dissenting on this issue, Judge Bat aillon relies in part on the panel opinion in 5 Autio v. AFSCME, Local 3139 , 140 F.3d 802 (8th Cir. 1998). That opinion wa s -10- Chief Justice Burger’s dissent in Wyoming reads like a preview of the Court’ s opinion in City of Boerne

. There, the Court first explained that Congress’ § 5 powers, while broad, are not without limits:
Congress ’ power under § 5, however, extends only to “enforcing” th e provisi ons of the Fourteenth Amendment. The Court has described thi s power as “remedial.” The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congres s has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States

. Legislation which alters the meaning of the Free Exercise Clause cannot be sa id to be enforcing the Clause. Congress does not enforce a constit utional right by changing what the right is. It has been given th e power “to enforce,” not the power to determine what constitutes a constitutional violation.

117 S. Ct . at 2164 (citation omitted). “If Congress could define its own powers b y altering the Fourteenth Amendment’s meaning,” the Court continued, “no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’” Id. at 2168 , quoting Marbury v. Madison , 1 Cranch 137, 177 (1803), and declining t o expansi vely construe Katzenbach v. Morgan . The Court went on to conclude tha t RFRA exceeded Congress’ § 5 power because it “is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to p revent, unconstitutional behavior,” and because that statute “is not designed t o identify and counteract state laws likely to be unconstitutional becaus e of their treatment of religion.” Id. at 2170-71. We conclude the ADEA likewise exceeds Congress’s § 5 powers as defined in City of Boerne , for the reasons set forth in Chief Justice Burger’s dissent ing opinion in Wyoming

. Accord Kimel , 139 F.3d at 1446-48 (Cox, J. , concurring); MacPherson v. University of Montevallo , 938 F. Supp. 785, 789 (N.D

. Ala. 1996). 5vacated when we granted the petition for rehearing en banc on July 7, 1998.
-11- The judgment of the district court is affirmed.
BATAILLON, District Judge, dissenting:
I respectfully dissent from the court’s decision concluding that the text of the Age Discriminationin Employment Act (“ADEA”) does not reflect an unmistakably clear intent by Congress to abrogate the states’ Eleventh Amendment immunity. I also must disse nt from the court’s decision that the ADEA exceeds Congress’ § 5 enforcemen t power under the Fourteenth Amendment.
Prior to the appeal in this case, five sister circuits have concluded that Congress had the intent to a

brogate the states’ Eleventh Amendment immunity from claims filed under the Age Discrimination in Employment Act. Hur d v. Pittsburgh State Univ., 109 F.3d 15 40, 1544 (10th Cir. 1997) (declaring “Congress intended to abrogate stat e sovereig n immunity by enacting the 1974 amendments to the ADEA.”); Blanciak v

. Allegheny Ludlum Corp., 77 F.3d 69 0, 695 (3d 1996) (declaring “The [ADEA] simply leave s no room to dispute whether states and state agencies are included among th e class of potential defendants when sued under the ADEA for their actions a s ‘employers.’”); Santiago v. New York State Dep’t of Correctional Servs., 945 F.2d 25, 31 (2d Cir. 1991) (declaring in dictum that t he ADEA is an example of “legislation that has clearly stated Congress’ intention to abrogate states’ immun ity from damage actions in a var iety of contexts.”); Davidson v. Board of Governors , 920 F.2d 441, 443 (7t h Cir. 1990) (concluding “Unless Congress had said in so many words that it wa s abrogating the states’ sovereign immunity in age dis crimination cases -- and that degree of explicitnes s is not required . . . -- it could not have made its desire to override th e states’ sovereign immunity clearer.”); an d Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir. 1983) (concluding “[T]he ADEA’s express authorization for th e maintenance of suits against state employers comprises adequate evidence to-12-

demonstrate the congressional will that Eleventh Amendment immuni ty be abrogated.”).
Since this case was argued, the Seventh Circuit has reaffirmed its ear lier decision in Davidson , and t

he Ninth Circuit has joined the overwhelming majority of circuits in ho lding that Congress clearly expressed its intention to abrogate states’ immunity i n private suits for violations of the ADEA. Goshtasby v. Board of Trustees., 1998 WL 169755, *4 (7th Cir. April 13, 1998) (holding “[W]e reaffirm our position that Congress made its intention to abrog ate the states’ sovereign immunity unmistakably clear in the ADEA’s 1974 amendment.”); and Keeton et al. v. University of Nevada Sys., 1998 WL 381432, *3 (9th Cir. July 10, 1998)(holding that “Congress abrogated the states ’ immu nity in amending the ADEA pursuant to its Fourteenth Amendment enforcement auth ority.”). The weight of reason set forth in these seven circuit court opinion s compels me to dissent from the majority’s decision.

To determine whether Congress abrogated the states’ Eleventh Amendmen t immunit y in enacting the ADEA, a Court must first decide whether Congress ha s “unequi vocally expresse[d] its intent to abrogate the immunity.” Seminole Tribe v

. Florida, 517 U.S. 44, 55 (1996). However, Congress’ intent in the statutory text does not re quire explicit reference to state sovereign immunity or to the Eleventh Am endment. Dellmuth v. Muth , 491 U.S. 223, 233 (1989). Direct reference to th e “state ” in the text of a federal statute may suffice to evidence Congress’ intent t o abrog ate the states’ sovereign immunity from suit. Seminole Tribe, 517 U.S. at 5 7 (concluding that “the numerous references to the ‘State’ in the text of [the statute] make it indubitable that Cong ress intended through the Act to abrogate the States’ sovereign immunity from suit.”).
When Congre ss enacted the ADEA in 1967, the Act applied only to privat e employers. EEOC v. Elrod., 674 F.2d 601, 605-0 6 (7th Cir. 1982). In 1974, Congress expanded the ADEA’s definition of “employer” to include “a State or political-13-

subdivision of a State and any agency or instrumentality of a State.” Pub. L. No. 93- 259, §28(a)(2), 88 Stat. 74, codified at 29 U.S.C. § 630(b)(2). Congress also amended the definition of “employee” to include employees subject to the civil service laws of

a State government. Id ., § 28(a)(4), 88 Stat. 74, codified at 29 U.S.C. § 630(f). The direct textual references to “state” -- state, political subdivision of a state, agency of a state, instrumentality of a

state, and state government -- in the 1974 amendment to the ADEA clearly expressed C ongress’ intent to abrogate states’ sovereign immunity. Cf. Seminole Tribe, 517 U.S. at 57.

Under the Seminole Tribe test the second inquiry is whether Congress has acted “pursuant to a valid exercise of power” under the Fourteenth Amendment. Id. at 55. The Supreme Court has declared that “§5 is a positive grant of legislative powe r
au thorizing Congress to exercise its discretion in determining whether and wha t leg islation is needed to secure the guarantees of the Fourteenth Amendment. ” Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). Although the 1974 a mendment does not explicitly refer to the Fourteenth Amendment, there is no requirement that it do so. EEOC v. Wyoming , 460 U.S. at 243 n. 18 (declaring congress need not “anywher e recite the words ‘section 5' of the ‘Fourteenth Amendment’ or ‘equ al protection’. . . ‘for the cons titutionality of action taken by Congress does not depend on recitals of th e power which it undertakes to exercise’”) (quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948))

.

To determine whether Co ngress enacted appropriate legislation under § 5 of the Fourteenth Amendment, the Supreme Co urt established a three-part test in Katzenbach

v. Morgan. First, a court must determine whether a statute may be regarded as a n enactme nt

to enforce the Equal Protection Clause. Second, a court must determin e whether the statute i s plainly adapted to enforce the Equal Protection Clause. Third, a court must determine wheth er the statute is consistent, and not prohibited by, the letter and spirit of the Constitution. 384 U.S. at 650-51. Recently, the Supreme Cour t supplemented the analysis by directing courts to examine whether the statute createsRecently, the United States Court of App eals for the Eleventh Circuit held that 6 the ADEA was not a proper exercise of Congress’ sec tion 5 power because the ADEA confer s more extensive rights than those provided by the Fourteenth Amendment

. Kimel v. State of Fla. Bd. Of Regents., 139 F.3d 1426, 1446-47 (11th Cir. 1998).
-14- new constitutional rights through legislation or only deters and remedies constitutional violations. City of Boerne v. Flores, 117 S. Ct. 2157, 2163 (1997). A sta tute is deemed appropriate legislation if it deters or remedies constitutional violations. Id

.

The ADEA was enacted to enforce th e Equal Protection Clause. In enacting the ADEA, Congress announced “[T]he purpose of this [Act is] to promote employment of older persons based on their ability rather than age; to prohibit arbitrary ag e discrimin ation in employment; to help employers and workers find ways of meetin g problems arising from th e impact of age on employment.” 29 U.S.C. § 621. In 1973,

a Senate committee report found “[t]here is evidence that, like the corporate world , government managers also create an environment where you ng is sometimes better than old.” EEOC v. Wyoming, 460 U.S. at 233 (quoting Senate Special Committee o n Aging, Improving the Age Discrimination Law , 93d Con g., 1st Sess., 14 (Comm. Print. 1973), Legislative History 215, 231). In 1974, Congress responded by amending the ADEA to provide federal, state, and local government workers with the sam e protections against age-based discrimination afforded to employees in th e private sector. 29 U.S.C. §§ 630(b) and 631(b); EEOC v. Wyoming, 460 U.S. at 233 n.5.
Today, the majority concludes that the ADEA is not plainly adapted because it prohibi ts more than what an Article III court may find unconstitutional under th e Fourteent h

Amendment. In reaching this conclusion, the majority relies, in part, o n

6 City of Boerne. The majority’s reliance on City of Boerne is dubious. The federa l statu te challenged as unconstitutional was the Religious Freedom Restoration Ac t (“RFRA”), 107 Stat. 1488. 42 U.S.C. § 2000bb et seq . The Court fo und that the RFRA

was an unconstitutional exercise of Congress’ § 5 power because the statute was “so out of proportion to a supposed remedial or preventive object that it cannot be-15-

understood as responsive to, or designed to prevent, unconstitutional behavior.” City of Boerne, 117 S.Ct. at 2170. As such, the Court found that Congress exceeded its §5 power in enacting the RFRA because the statute attempted a “substantive change i n constitutional protections.” Id

.

Rec ently, an Eighth Circuit panel considered whether Congress had properl y enacted the Americans with Disabilities Act (“ADA”) under § 5 of the Fourteenth Amendment. Autio v. AFSCME, Local 313 9, 140 F.3d 802, 805-06 (8th Cir. 1998). In determining that Congress had, the panel distinguished the RFRA from the ADA b y declaring:

Unlike the RFRA, the ADA clearly chronicles and directly addresses the discri minationpeople with disabilities have experienced and the ‘evils ’ those with disabilities continu e to experience in modern day America. . . . Unlike the RFRA struck dow n in Flores , the ADA is ‘plainly adapted’ as a remedial measure even though each individual violati on of the ADA may not in and of itself be unconstitutional. The remedies provid ed in the ADA are not so sweeping that they exceed the ha rms they are sought to redress. Becau se of the clear “evil” present in disability discrimination and th e well-docu mentedneed for equal protection in this respect, the ADA i s plainly a dapted to the end of providing those with disabilities equa l protection under the law.

Id . at 805.
The analysis in Autio is directly ap plicable to this case. In the text of the ADEA statute, Congress directly addressed the arbitrary discrimination older employees face in the workplace. See 29 U.S.C. § 621(b). The remedies provided in t he ADEA are not “so o ut of proportion” to the problems of arbitrary age discrimination identified b y Congress. Rather, the documented existence of age-bas ed discrimination in private and public employment induced Congress to intrude not only upon the interests of private employers but also upon state interests through t he enactment of the 1974 amendments.-16-

In light of the well-documented need for equal protection of older workers, I believe the ADEA is plainly adapted to the end of providing older workers equal protection under the law.
Finally, the 1974 amendments to the ADEA are fully consistent with both th e letter and the spirit of the Constitution. The Constitution guarantees equal protection under the law. Arbitraryand intentional discrimination on the basis of age violates the Equal Protection Clause. Gregory v. Ashcroft, 501 U.S. at 470-71. Simply because the Supreme Court does not elevate age to a suspect or quasi-suspe ct classification does not mean that Congress cannot enforce the Equal Protection Clause through th e enactment

of a statute aimed directly at prohibiting arbitrary age discrimination i n employ ment. Goshtasby, 1998 WL 169755, *10 (7th Cir. April 13, 1998). I concu r with the Seventh Circuit in concluding that Congress does not exceed its enforcement power under § 5 by enacting legislation designed to guarantee equal protection for all persons regardless of the level of judicial scrutiny afforded to them. Id

.

For the foregoing reasons, I respectfully dissent and would reverse the order of the district court.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.