Patterico's Pontifications

11/4/2005

The Alito Project: PFAW Incorrectly Claims that Supreme Court Effectively Overruled Judge Alito in the FMLA Case

Filed under: Constitutional Law,Court Decisions,Judiciary — Patterico @ 1:27 pm



[This is a footnote to my post below about Judge Alito’s decision on the Family and Medical Leave Act.]

In PFAW’s preliminary report on Judge Alito’s opinions, the group claims on page one:

Alito claimed that the federal government could not apply the Family and Medical Leave Act to state employees, a decision effectively reversed by the Supreme Court . . .

(All emphasis in this post is mine.)

This claim is false. The Supreme Court did not effectively reverse Judge Alito’s decision at all. A unanimous panel decision of the Tenth Circuit has held that the Supreme Court was analyzing a different provision than the one examined by Judge Alito. The Tenth Circuit panel looked at the same issue, taking the Supreme Court’s decision into account, and came down the same way as Judge Alito’s unanimous panel had.

So PFAW just plain got it wrong. (Shocker, huh?)

As I explained in my previous post, Congress may validly take away a state’s Eleventh Amendment immunity from suit only if Congress is enforcing the Fourteenth Amendment by remedying discrimination triggering heightened scrutiny, such as gender discrimination. The Supreme Court case of Nevada Dep’t of Human Resources v. Hibbs said that Congress had indeed enforced the Fourteenth Amendment in passing the family leave aspect of the law (subsection (C)), which the Court held was a narrowly tailored remedy to the problem of gender discrimination in the allocation of family leave. In short, states had historically been much freer with maternity leave than paternity leave, creating a gender inequity. Hibbs said that evidence of such discrimination supported Congress’s decision to eliminate state sovereign immunity to lawsuits brought to enforce the family leave aspects of the Act.

This decision did not necessarily say anything about the medical leave aspect of the law (subsection (D)), which (as discussed in the previous post) has nothing to do with the Fourteenth Amendment. The Supreme Court majority did not mention Judge Alito’s opinion, or say anything specific about whether Congress’s medical leave provisions were related in any way to discrimination prohibited by the Fourteenth Amendment.

Arguably, then, the question of Eleventh Amendment immunity for suits relating to medical leave was an open question after Hibbs. And the Tenth Circuit has resolved that question in favor of the position taken by Judge Alito.

The link to the Tenth Circuit decision is here. I found the case after reading about it in this post by Ed Whelan at Bench Memos. Whelan explains that the decision was “written by one Clinton appointee and joined by another.” Here’s what the decision says about the applicability of the Supreme Court decision in Hibbs to the medical leave provisions of the FMLA:

Because the Supreme Court’s analysis in Hibbs turned on the gender-based aspects of the FMLA’s section 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self care provision. First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S. Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S. Rep. No. 103 3, at 12; H.R. Rep. 101-28(I), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.

. . . .

We thus hold that through subsection (D), Congress did not effect a valid abrogation of state sovereign immunity.

That’s exactly what Judge Alito had held!

So PFAW is just plain wrong. The Supreme Court did not “effectively overrule” Judge Alito’s decision. The authors of the PFAW report should retract their statement and apologize to Judge Alito.

Now, let’s all hold our breath until they do.

UPDATE: A commenter asks whether the Tenth Circuit decision was appealed to the Supreme Court, and if so, what happened.

The answer is: yes, it was — and the Supreme Court declined to hear the case. Brockman v. Wyoming Dept. of Family Services, 342 F.3d 1159 (10th Cir. 2003), cert. denied, 540 U.S. 1219 (2004). But don’t read too much into that. The Court’s refusal to hear an appeal doesn’t necessarily mean the Court thinks the lower court got it right.

Also, the Sixth Circuit came to the same conclusion as the Brockman court just two months ago, in Touvell v. Ohio Dept. of Mental Retardation and Development Disabilities, 422 F.3d 392 (6th Cir. 2005). The court used some sloppy language in describing the holdings of other circuits, including Judge Alito’s case, but ultimately concluded:

[W]e agree with the Tenth Circuit that the Supreme Court’s holding in Hibbs does not apply to the self-care provision of the FMLA, and that private suits for damages may not be brought against states for alleged violations of the Act arising from claimed entitlement to leave under § 2612(a)(1)(D).

The court noted that other state and federal courts had come to the same conclusion, and that one federal District Court had come to the opposite conclusion, for reasons that the Sixth Circuit explained were insufficient. The District Court’s decision was not based purely on Hibbs, but also on its own independent review of the legislative history. It appears that the District Court’s decision will be headed to the Seventh Circuit, which will (I predict) reverse the decision and fall into line with the views of the Tenth and Sixth Circuits.

5 Responses to “The Alito Project: PFAW Incorrectly Claims that Supreme Court Effectively Overruled Judge Alito in the FMLA Case”

  1. Just a thanks for all the analysis and also breaking this stuff down into words us non-lawyer types can understand. Keep up the good work.

    Matt (5c8286)

  2. Was the Tenth Circuit decision appealed? If so, what did the Supreme Court do with it?

    David Barnett (3c6d8a)

  3. David: yes. See the update.

    Patterico (4e4b70)

  4. Don’t you mean “lower court got it right” in the update?

    James B. Shearer (fc887e)

  5. Dang it. Why don’t I not use a double negative? Thanks for the proofreading. You’re pretty good at that.

    Patterico (4e4b70)


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