The opinion
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 1 of 23
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11286
____________________
KRISTIE WILLIAMS,
Plaintiff-Appellee,
versus
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA,
THE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:22-cv-00758-MHH
____________________
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 2 of 23
2 Opinion of the Court 23-11286
Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.
NEWSOM, Circuit Judge:
This appeal concerns the Family and Medical Leave Act—
and, as it turns out, Congress’s constitutional authority “[t]o raise
and support Armies” and “[t]o provide and maintain a Navy.” U.S.
Const. art. I, § 8, cls. 12–13. Kristie Williams accused her former
employer, the University of Alabama at Birmingham, of violating
her rights under the Act. Although (for reasons we’ll explain) it’s
not entirely clear at this stage of the proceedings, Williams seems
to have alleged that she was entitled to leave under one or more of
three of the Act’s provisions—what we’ll call the “family-care,” “ac-
tive-duty,” and “servicemember-family” leave provisions. See 29
U.S.C. § 2612(a)(1)(C), (a)(1)(E), (a)(3). The University contends
that Williams’s suit is barred by state sovereign immunity. Insofar
as Williams seeks only family-care leave under § 2612(a)(1)(C), this
is an easy case—the Supreme Court has squarely held that sover-
eign immunity doesn’t foreclose such suits. But Williams might
instead (or also) be claiming active-duty or servicemember-family
leave under § 2612(a)(1)(E) or § 2612(a)(3), respectively. That pos-
sibility requires us to resolve a more difficult question—namely,
whether Alabama, by virtue of having agreed to the Constitution’s
plan that the national defense is the province of the federal govern-
ment, has waived its immunity to suits brought under the Act’s ac-
tive-duty and servicemember-family leave provisions.
We hold that Williams’s suit is not barred, no matter how
conceived. To the extent that Williams alleges that she was
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 3 of 23
23-11286 Opinion of the Court 3
entitled to leave under the Act’s family-care provision, her suit may
proceed because Congress has validly abrogated Alabama’s sover-
eign immunity with respect to family-care claims. And to the ex-
tent that Williams alleges that she was entitled to leave under the
Act’s active-duty or servicemember-family leave provisions, her
suit may proceed because Alabama waived its sovereign immunity
when it joined the Union and thereby assented to the plan of the
Constitutional Convention. We therefore affirm the district
court’s denial of the Board’s motion to dismiss and remand for fur-
ther proceedings consistent with this opinion.
I
A
Kristie Williams used to work for the University of Alabama
at Birmingham.1 Then, a family crisis upended her job. While
serving in the Marine Corps in Hawaii, Williams’s daughter was
allegedly sexually assaulted by a superior officer. As soon as Wil-
liams heard about the incident, she requested leave from the Uni-
versity under the Family and Medical Leave Act of 1993, 29 U.S.C.
§§ 2601–2654, so that she could fly to Hawaii to take care of her
daughter.
We’ll unpack the details in due course, but in (very) short,
the University approved Williams’s leave request. To seek leave
1 Williams’s case reaches us on a facial challenge to the district court’s subject
matter jurisdiction. Accordingly, for purposes of this appeal, we assume that
her complaint’s allegations are true. Lord Abbett Mun. Income Fund, Inc. v. Ty-
son, 671 F.3d 1203, 1206 (11th Cir. 2012).
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 4 of 23
4 Opinion of the Court 23-11286
under the FMLA (as the Act is known), Williams filled out a stand-
ard University-provided document titled “Military Family Medical
Leave of Absence Request Form.” Within two weeks, the Univer-
sity granted Williams about a month of FMLA leave. Despite hav-
ing received the University’s blessing to take time off to support
her daughter, Williams alleges that she continued to get work-re-
lated emails and requests that she help with office projects. Alt-
hough Williams told her colleagues that she was on continuous
FMLA leave and shouldn’t be working, she received increasingly
critical feedback from supervisors about her work performance.
Things didn’t improve. Supervisors placed her on “develop-
ment plans” and told her that she needed to join weekly video-con-
ference calls to track her progress. Williams eventually returned to
regular work, but the criticism of her performance continued. Be-
fore long, she sensed that a pink slip was inevitable and resigned.
B
The FMLA entitles “eligible employees” to take unpaid
leave “for any of several reasons.” Nevada Dep’t of Hum. Res. v.
Hibbs, 538 U.S. 721, 724 (2003). Three of those reasons are relevant
here. First, an eligible employee may take 12 weeks of so-called
“family-care” leave “[i]n 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.” 29 U.S.C. § 2612(a)(1)(C).
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 5 of 23
23-11286 Opinion of the Court 5
Second, an employee may take 12 weeks of “active-duty” leave2 in
the event of a “qualifying exigency . . . arising out of the fact that
the spouse, or a son, daughter, or parent of the employee is on cov-
ered active duty (or has been notified of an impending call or order
to covered active duty) in the Armed Forces.” Id. § 2612(a)(1)(E). 3
Finally, an employee may take up to 26 weeks of “[s]ervicemember
family” leave to “care for [a] servicemember” who is an immediate
family member. Id. § 2612(a)(3).
Congress enacted these leave provisions at different times.
Family-care leave has been part of the FMLA from the beginning.
See Family and Medical Leave Act of 1993, Pub. L. No. 103-3,
§ 102(a)(1)(C), 107 Stat. 6, 9. But active-duty leave and service-
member-family leave are newer. In 2008, Congress amended the
FMLA in the annual defense authorization bill. See National De-
fense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
§ 585(a)(2), 122 Stat. 3, 129 (2008). That amendment added both
active-duty leave and servicemember-family leave to the category
of things that trigger FMLA protection. See id.; 29 U.S.C.
§ 2612(a)(1)(E), (a)(3).
FMLA leave entitlements may be enforced through the Act’s
private right of action. If an employer “interfere[s] with, restrain[s],
2 The district court called leave taken under 29 U.S.C. § 2612(a)(1)(E) “active-
duty leave,” and we follow suit.
3 What counts as a “qualifying exigency” is determined by the Secretary of
Labor. 29 U.S.C. § 2612(a)(1)(E); see 29 C.F.R. § 825.126(b) (listing qualifying
exigencies).
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 6 of 23
6 Opinion of the Court 23-11286
or den[ies] the exercise of” an eligible employee’s FMLA rights, 29
U.S.C. § 2615(a)(1), the employee may seek “damages or equitable
relief” against her “employer (including a public agency) in any
Federal or State court of competent jurisdiction,” id. § 2617(a)(2);
see also Hibbs, 538 U.S. at 724–25.
C
After Williams left her job, she sued the University of Ala-
bama at Birmingham’s parent institution, the Board of Trustees of
the University of Alabama. The complaint asserted that she was
entitled to FMLA leave and that the Board failed to honor that en-
titlement. Williams raised two claims: that the Board interfered
with her exercise of her FMLA rights and that it retaliated against
her for using those rights.
Although it’s not entirely clear, Williams’s complaint seemed
to allege that she was entitled, specifically, to what we’ve called
active-duty leave. She alleged that the University “approved Wil-
liams for Military Qualifying Exigency Leave pursuant to the
FMLA.” Compl. ¶ 17. That language echoes 29 U.S.C.
§ 2612(a)(1)(E), which provides that an eligible employee is entitled
to FMLA leave if she faces a “qualifying exigency” related to a rel-
ative’s active-duty service in the military.
The Board moved to dismiss, arguing that, as an arm of the
State of Alabama, it was shielded from suit by sovereign immunity.
The Board acknowledged that Congress had validly abrogated
state sovereign immunity for FMLA suits based on an entitlement
to family-care leave under 29 U.S.C. § 2612(a)(1)(C). See Hibbs, 538
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 7 of 23
23-11286 Opinion of the Court 7
U.S. at 740. But here, the Board insisted, Williams had invoked
active-duty leave—not family-care leave. And, the Board argued,
Congress had not validly abrogated state sovereign immunity for
FMLA claims arising out of the Act’s active-duty leave provision.
In its motion to dismiss, though, the Board (perhaps unwit-
tingly) introduced the possibility that Williams might actually have
been claiming an entitlement to a second kind of leave: service-
member-family leave under 29 U.S.C. § 2612(a)(3). The Board at-
tached to its motion a copy of the University’s leave-request form
that (it said) Williams filled out when she sought FMLA leave. On
the form, Williams checked a box indicating that she was the “[p]ar-
ent of a covered service member with a serious injury or illness.”
Next to the box, the form said that “[t]his leave includes a special
entitlement of up to 26 weeks of leave in a rolling 12-month pe-
riod.” But the special 26-week entitlement and the term “covered
servicemember” mirrors § 2612(a)(3)’s servicemember-family
leave provision.
The district court denied the Board’s motion to dismiss.
Williams v. Bd. of Trs. of Univ. of Ala., No. 2:22-cv-00758, 2023 WL
2601935, at *4 (N.D. Ala. Mar. 22, 2023). In so doing, the court
introduced a third possibility: that Williams had actually sought
family-care leave under § 2612(a)(1)(C). Id. According to the dis-
trict court, servicemember-family leave isn’t a distinct category of
FMLA leave at all; instead, it is “linked” to family-care leave. Id. at
*3. The district court reasoned as follows: Ordinarily, family-care
leave under § 2612(a)(1)(C) lasts just 12 weeks—but, the court said,
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 8 of 23
8 Opinion of the Court 23-11286
if a leave-seeker satisfies § 2612(a)(3)’s requirements for service-
member-family leave, then her leave entitlement extends to 26
weeks. See id. Here, the court explained, Williams’s “daughter’s
assault” might “qualif [y] as [a] ‘serious injury or illness’ to a ‘cov-
ered servicemember’” within the meaning of § 2612(a)(3). Id. at *4.
Therefore, when Williams completed a form that appeared to in-
voke servicemember-family leave, she was really just seeking fam-
ily-care leave—with the caveat that if she satisfied the servicemem-
ber-family leave requirements, her leave could run longer than
usual. See id. at *3–4. And, as the Board recognized, the Supreme
Court held in Hibbs that Congress had abrogated state sovereign
immunity for FMLA suits based on an entitlement to family-care
leave. 538 U.S. at 740. Accordingly, the district court held, because
Williams was really just seeking a variant of family-care leave,
Hibbs covered her suit, Congress had abrogated the Board’s sover-
eign immunity, and her case could proceed. Williams, 2023 WL
2601935, at *4.
This is the Board’s interlocutory appeal from the district
court’s denial of its motion to dismiss. 4
4 Two procedural points. First, a note about our jurisdiction over this appeal:
In the ordinary course, we may hear only appeals from final judgments. CSX
Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000). There
is no final judgment here. But under the collateral order doctrine, we none-
theless have jurisdiction to review a district court’s denial of a motion to dis-
miss on sovereign-immunity grounds. Summit Med. Assocs., P.C. v. Pryor, 180
F.3d 1326, 1334 (11th Cir. 1999). Second, the standard of review: We review
de novo both issues pertaining to subject matter jurisdiction and a district
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 9 of 23
23-11286 Opinion of the Court 9
II
At this stage of the proceedings, we are tasked with deciding
only one question: Does sovereign immunity bar Williams’s suit?
We will not consider whether, on the merits, Williams was entitled
to FMLA leave. Nor, although the parties bitterly contest it, need
we even definitively decide, based on the limited record before us,
what kind of leave—family-care, active-duty, or servicemember-
family leave—Williams requested. As it turns out, no matter how
Williams’s suit is conceived—no matter what kind of leave she
sought—the Board lacks sovereign immunity. Let us explain.
A
As a general proposition, the states, as sovereigns, enjoy im-
munity from lawsuits brought against them without their consent.
See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73 (2000). Although
we often refer to the states’ “Eleventh Amendment immunity,”
that Amendment actually uses very “narrow[]” language. Blatch-
ford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 779 (1991);
see U.S. Const. amend. XI (referring, e.g., to suits “commenced or
prosecuted against one of the United States by Citizens of another
State” (emphasis added)). Nonetheless, since the Supreme Court’s
momentous decision in Hans v. Louisiana, 134 U.S. 1 (1890), courts
“have understood the Eleventh Amendment to stand not so much
for what it says, but for the presupposition of our constitutional
court’s denial of a motion to dismiss on sovereign immunity grounds. Id. at
1333–34.
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 10 of 23
10 Opinion of the Court 23-11286
structure which it confirms: that the States entered the federal sys-
tem with their sovereignty intact” and “that the judicial authority
in Article III is limited by this sovereignty.” Blatchford, 501 U.S. at
779.
This so-called Eleventh Amendment immunity extends
both to “the State itself” and to “arm[s] of the State.” Manders v.
Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc) (quotation marks
omitted). Here, no one disputes that the defendant—the Board of
Trustees of the University of Alabama—is an “arm” of the State of
Alabama. Cf. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363–
64 (2001) (applying Eleventh Amendment immunity to a suit
against the Board). And the Board insists that it hasn’t consented
to be sued. So, if we take the general rule at face value, Williams’s
FMLA action doesn’t stand a chance.
But as is so often the case with general rules, the devil’s in
the details. As relevant here, there are two exceptions (so to speak)
to state sovereign immunity. First, Congress, acting pursuant to its
Fourteenth Amendment enforcement powers, see U.S. Const.
amend XIV, § 5, may “abrogate” states’ immunity. A valid abroga-
tion requires two preconditions: (1) Congress must satisfy a clear-
statement rule by “unequivocally” expressing its intent to strip the
states of their immunity, see Garrett, 531 U.S. at 363; and (2) Con-
gress’s use of its Fourteenth Amendment enforcement authority
“must exhibit ‘congruence and proportionality between the injury
to be prevented or remedied and the means adopted to that end,’”
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 11 of 23
23-11286 Opinion of the Court 11
id. at 365 (quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997)). 5
Determining whether Congress’s purported abrogation in a partic-
ular statute satisfies this congruence-and-proportionality test often
involves a deep dive into the measure’s legislative history and un-
derlying purposes. See, e.g., Hibbs, 538 at 728–37; City of Boerne, 521
U.S. at 530–32.
Second, and separately, the states may consent to be sued.
See Sossamon v. Texas, 563 U.S. 277, 284 (2011). Such consent can
of course be manifested in the usual ways—say, through a contract
or state statute waiving immunity. See id. (“A State . . . may choose
to waive its immunity in federal court at its pleasure.”); Port Auth.
Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306–07 (1990) (discussing
state statutes that manifested consent to suit). But there’s another
possibility. The Supreme Court has explained that a state may also
be sued “if it has agreed to suit in the ‘plan of the Convention,’
which is shorthand for ‘the structure of the original Constitution
itself.’” PennEast Pipeline Co., LLC v. New Jersey, 594 U.S. 482, 500
(2021) (quoting Alden v. Maine, 527 U.S. 706, 728 (1999)). Under this
“plan of the Convention” doctrine, there are “certain waivers of
sovereign immunity to which all States implicitly consented at the
founding.” Id. When a lawsuit slots into one of these “certain
waivers,” id., “no congressional abrogation [is] needed” because
5 Technically, the congruence-and-proportionality test applies only when Con-
gress is exercising its “prophylactic” enforcement powers. See United States v.
Georgia, 546 U.S. 151, 158 (2006); Garrett, 531 U.S. at 365. Congress is free to
“create[e] private remedies against the States for actual violations” of the Four-
teenth Amendment. Georgia, 546 U.S. at 158.
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 12 of 23
12 Opinion of the Court 23-11286
there’s nothing to abrogate—“the States ha[ve] already ‘agreed in
the plan of the Convention not to assert any sovereign immunity
defense,’” Allen v. Cooper, 589 U.S. 248, 258–59 (2020) (quoting Cent.
Va. Cmty. Coll. v. Katz, 546 U.S. 356, 377 (2006)).
B
To the extent that Williams relies on an alleged entitlement
to family-care leave under § 2612(a)(1)(C), the Board is subject to
suit because Congress has validly abrogated the states’ sovereign
immunity.
In Hibbs, the Supreme Court held that an eligible employee
could sue her state employer “in the event of the State’s failure to
comply with the family-care provision of the [FMLA].” 538 U.S. at
725. With respect to family-care leave, the Court concluded, Con-
gress had both clearly expressed its intent to abrogate state sover-
eign immunity and exercised its Fourteenth Amendment enforce-
ment powers in a way that was “congruent and proportional to the
targeted violation.” Id. at 726, 737 (citation and quotation marks
omitted). So, inasmuch as Williams relies on an alleged entitle-
ment to family-care leave, sovereign immunity doesn’t bar her suit.
That much is clear.
On appeal, Williams seeks to extend Hibbs by embracing the
district court’s conclusion that § 2612(a)(3) servicemember-family
leave effectively is § 2612(a)(1)(C) family-care leave. Echoing the
district court, Williams contends that the former is really just a par-
ticular subspecies of the latter. And accordingly, the argument
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 13 of 23
23-11286 Opinion of the Court 13
goes, Hibbs’s sovereign immunity holding covers a suit challenging
a denial of a request for servicemember-family leave.
We’re dubious. Post-Hibbs precedent makes clear that the
Supreme Court’s decision there goes only so far as to validate Four-
teenth Amendment abrogation for family-care suits under
§ 2612(a)(1)(C). In Coleman v. Court of Appeals of Maryland, 566 U.S.
30 (2012), the Court considered a suit brought under the FMLA’s
“self-care” provision, which entitles an eligible employee to leave
necessitated by “a serious health condition that makes [her] unable
to perform the functions of [her] position.” 29 U.S.C.
§ 2612(a)(1)(D). The Court held that, with respect to self-care suits,
Congress had not satisfied the Fourteenth Amendment congru-
ence-and-proportionality requirement and, accordingly, that the
states remain immune to suit (absent their consent) for self-care-
based FMLA lawsuits. See Coleman, 566 U.S. at 43–44. The diver-
gent decisions in Hibbs and Coleman demonstrate that congruence
and proportionality is not measured in gross but, rather, must be
determined on a provision-by-provision basis. And even if service-
member-family leave is in some sense connected to family-care
leave, it’s not the same as family-care leave. As already explained,
Congress enacted § 2612(a)(3) at a different time, and for different
reasons. So, if servicemember-family-leave suits are to be justified
on abrogation grounds, then § 2612(a)(3) must itself satisfy the con-
gruence-and-proportionality test.
But we needn’t decide today whether § 2612(a)(3) passes
congruence-and-proportionality muster. As we explain in the next
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 14 of 23
14 Opinion of the Court 23-11286
section, active-duty and servicemember-family leave suits may pro-
ceed on an altogether different basis.
C
To the extent that Williams relies on an alleged entitlement
to either active-duty leave under § 2612(a)(1)(E) or servicemember-
family leave under § 2612(a)(3), her suit may go forward—but for
different reasons. The Board is subject to suit pursuant to those
provisions under the plan-of-the-Convention doctrine.
1
Over the years, the Supreme Court has recognized a handful
of plan-of-the-Convention waivers. According to the Court, the
states have consented, for instance, to suits brought by the federal
government, United States v. Texas, 143 U.S. 621, 646 (1892), suits
brought by other states, South Dakota v. North Carolina, 192 U.S.
286, 318 (1904), suits brought in the context of bankruptcy proceed-
ings, Katz, 546 U.S. at 379, and “condemnation suits by the Federal
Government and its delegatees,” PennEast, 594 U.S. at 508; see id. at
500 (summarizing plan-of-the-Convention waivers).
The most recent entry in the plan-of-the-Convention series
is particularly relevant for present purposes. In Torres v. Texas De-
partment of Public Safety, 597 U.S. 580 (2022), the Supreme Court
considered whether sovereign immunity barred a suit against
Texas brought under USERRA, the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301–
4335. The plaintiff there, a servicemember returning from Iraq and
a former state employee, alleged that Texas had violated USERRA
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 15 of 23
23-11286 Opinion of the Court 15
by refusing to rehire him and to accommodate a service-related dis-
ability. See Torres, 597 U.S. at 585–86. Texas argued that sovereign
immunity barred the suit, but the Supreme Court disagreed. It ex-
plained that plan-of-the-Convention waiver applies when “the fed-
eral power at issue is ‘complete in itself, and the States consented
to the exercise of that power—in its entirety—in the plan of the
Convention.’” Id. at 589 (quoting PennEast, 594 U.S. at 508). Sig-
nificantly for us, the Court held that Congress’s “power to build
and maintain the Armed Forces” satisfied that test. Id. at 590. For
one thing, the Court explained, “the Constitution’s text . . .
strongly suggests a complete delegation of authority to the Federal
Government to provide for the common defense.” Id. For an-
other, “the States, in coming together to form a Union, agreed to
sacrifice their sovereign immunity for the good of the common de-
fense.” Id. at 599. Therefore, the Court held, the states waived
their immunity with respect to suits implicating Congress’s “power
‘[t]o raise and support Armies’ and ‘provide and maintain a Navy.’”
Id. at 594 (alteration in original) (quoting U.S. Const. art. I, § 8, cls.
12–13). And because “Congress enacted USERRA as an exercise”
of those military-supporting powers, the plaintiff’s USERRA suit
qualified for plan-of-the-Convention treatment, meaning that
Texas lacked sovereign immunity. Id. at 587, 599.
Quite unlike the Supreme Court’s abrogation precedents—
which, as explained, have proceeded on a provision-by-provision
basis—its holding in Torres was categorical. The Court there didn’t
focus on USERRA in particular; instead, it considered whether the
states had waived wholesale their sovereign immunity with respect
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 16 of 23
16 Opinion of the Court 23-11286
to suits involving the federal government’s national-defense pow-
ers—and concluded that they had. See id. at 590–94, 599. Hence
Torres’s robust major premise: Eleventh Amendment immunity
does not bar suits against states authorized by Congress pursuant
to an exercise of its “power to build and maintain the Armed
Forces.” Id. at 590, 594.
So, when Congress validly legislates pursuant to its power
to raise and support a military, it may authorize suits against the
states—without regard to their sovereign immunity. The question
here is thus whether Congress did so: When it enacted the active-
duty and servicemember-leave provisions of the FMLA, see 29
U.S.C. § 2612(a)(1)(E), (a)(3), was Congress exercising its constitu-
tional authority to raise and support a military? We conclude that
it was.
2
Perhaps surprisingly, there’s no standard method for deter-
mining the constitutional provision on which Congress relied
when enacting a particular piece of legislation. Sometimes a stat-
ute’s text or legislative history makes it clear. See, e.g., Hibbs, 538
U.S. at 726–27 & n.1. But oftentimes, that’s not the case, and Su-
preme Court precedent makes clear that a lack of smoking-gun ev-
idence isn’t dispositive. Torres is illustrative. There, in holding that
“Congress enacted USERRA as an exercise of its power ‘[t]o raise
and support Armies’ and ‘[t]o provide and maintain a Navy,’” the
Court simply surveyed the statute’s subject matter and historical
context. Torres, 597 U.S. at 585, 587 (alteration in original) (quoting
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 17 of 23
23-11286 Opinion of the Court 17
U.S. Const. art. I, § 8, cls. 12–13). Those, the Court seemed to as-
sume, left little doubt about which constitutional provisions under-
lay the law: USERRA concerns servicemembers’ employment, and
it is rooted in the military-focused Selective Training and Service
Act of 1940, ch. 720, 54 Stat. 885. The Court thus seemed to take
for granted that Congress had enacted the law pursuant to its mili-
tary-supporting powers. See Torres, 597 U.S. at 585–86, 587.
Here too, the context indicates that Congress’s military-sup-
porting powers undergird the FMLA’s provisions protecting active-
duty and servicemember-family leave. In enacting the original
FMLA provisions—including § 2612(a)(1)(C)’s protection of fam-
ily-care leave—“Congress relied on . . . its Article I commerce
power and its power under § 5 of the Fourteenth Amendment.”
Hibbs, 538 U.S. at 726. The 2008 FMLA amendments—which in-
cluded § 2612(a)(1)(E) and § 2612(a)(3)—are different. Congress
added active-duty and servicemember family leave partly in re-
sponse to recommendations made by the President’s Commission
on Care for America’s Returning Wounded Warriors. See H.R.
Rep. No. 110-477, at 916–17 (2007) (Conf. Rep.). President George
W. Bush had charged the Commission with, among other things,
seeking to ensure that wounded servicemembers coming back
“from deployment in support of the Global War on Terror” had a
“successful return to productive military service or civilian soci-
ety.” Exec. Order No. 13426, 72 Fed. Reg. 10589, 10589 (Mar. 8,
2007). The Commission found not only that many injured service-
members received care from family members, but also that some
of those family members gave up jobs to provide that care. See
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 18 of 23
18 Opinion of the Court 23-11286
Findings of the President’s Commission on Care for America’s Returning
Wounded Warriors, 110th Cong. 6, 35–36, 57 (2007). To that end, it
recommended that Congress “amend the Family Medical Leave
Act to allow up to six months’ leave for a family member of a ser-
vice member who has a combat-related injury.” Id. at 58, 157.
Other legislative history further ties the amendments to Congress’s
efforts “to encourage service in the Armed Forces in a variety of
ways.” Torres, 597 U.S. at 585. One Congressman, for instance,
described the FMLA amendments as “an extension of a direction
that Congress began” when it passed the Selective Training and
Service Act—the same law that the Supreme Court cited in Torres
as USERRA’s forebear. The Family and Medical Leave Act: Extending
Coverage to Military Families Left at Home, 110th Cong. 13 (2007)
(statement of Rep. Darrell Issa).
Additional contextual evidence confirms what the legislative
history indicates. When Congress added the active-duty and ser-
vicemember-family leave provisions to the FMLA, it did so as part
of the National Defense Authorization Act, under the following
designations: “Division A—Department of Defense Authoriza-
tions,” “Title V—Military Personnel Policy,” and “Subtitle H—Mil-
itary Families.” National Defense Authorization Act for Fiscal Year
2008, Pub. L. No. 110-181, § 585(a)(2), 122 Stat. 3, 8, 129 (2008).
Those headings, while not decisive, are telling. Cf. Dubin v. United
States, 599 U.S. 110, 120–21 (2023) (“[T]he title of a statute and the
heading of a section are tools available for the resolution of a doubt
. . . .” (citation and quotation marks omitted)).
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 19 of 23
23-11286 Opinion of the Court 19
That’s more than enough. As Torres makes clear, Congress
had no obligation to incant the words of the Army and Navy
Clauses. Indeed, the Supreme Court long ago held that “[t]he ques-
tion of the constitutionality of action taken by Congress does not
depend on recitals of the power which it undertakes to exercise.”
Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); accord United
States v. Moghadam, 175 F.3d 1269, 1275 n.10 (11th Cir. 1999). In so
doing, the Court upheld legislation under the military-supporting
powers because it was “plain from the legislative history that Con-
gress was invoking its war power to cope with a current condition
of which the war was a direct and immediate cause.” Woods, 333
U.S. at 144 (footnote omitted). And here, the legislative history and
related context are unmistakable: When it added the active-duty
and servicemember-family leave provisions to the FMLA, Con-
gress was exercising its constitutional powers to support members
of the military and respond to the aftermath of “the Global War on
Terror.” Exec. Order. No. 13426, 72 Fed. Reg. 10589, 10589 (Mar.
8, 2007). We thus have no trouble concluding that, just as in Torres,
Congress enacted § 2612(a)(1)(E) and § 2612(a)(3) “as an exercise of
its power ‘[t]o raise and support Armies’ and ‘[t]o provide and
maintain a Navy.’” 597 U.S. at 587 (alteration in original) (quoting
U.S. Const. art. I, § 8, cls. 12–13). 6
6 The Board protests that “Williams has cited no evidence that Congress en-
acted the military caregiver provisions of the FMLA, or the Act as a whole,
pursuant to [Congress’s military-supporting powers].” Reply Br. at 10–11 (em-
phasis added). True enough, but that’s no reason to ignore Williams’s (cor-
rect) argument that plan-of-the-Convention waiver applies here. See Appellee
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 20 of 23
20 Opinion of the Court 23-11286
That resolves this case. Torres held that Eleventh Amend-
ment immunity doesn’t bar suits against states arising out of stat-
utes enacted pursuant to Congress’s “power to build and maintain
the Armed Forces.” Id. at 590, 594. And, we conclude, when Con-
gress amended the FMLA to include the active-duty and service-
member-family leave protections, it did so pursuant to its military-
supporting authority. Accordingly, insofar as Williams’s suit al-
leges an entitlement to either of those kinds of FMLA leave, the
Board’s invocation of sovereign immunity fails. 7
3
The Board advances two arguments why plan-of-the-Con-
vention waiver doesn’t permit Williams’s lawsuit. Neither per-
suades us.
First, the Board asserts that the 2008 FMLA amendments
“do not meet the standard for waiver of immunity identified in
Torres: ‘whether the federal power at issue is complete in itself, and
the States consented to the exercise of that power—in its entirety—
Br. at 25–26. Cf. Moghadam, 175 F.3d at 1275 n.10 (“[I]n exercising the power
of judicial review, we look only at the actual powers of the national govern-
ment.” (citation and quotation marks omitted)).
7 Neither Katz, PennEast, nor Torres assessed whether the particular statutes at
issue in those cases were valid exercises of Congress’s authority under its bank-
ruptcy, eminent domain, or military-raising powers, respectively. Cf. Katz, 546
U.S. at 379; PennEast, 594 U.S. at 508; Torres, 597 U.S. at 599. And here, the
Board doesn’t contend that the 2008 FMLA amendments were an invalid ex-
ercise of Congress’s military-raising powers. So, following the Supreme
Court’s lead, we pretermit that issue.
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 21 of 23
23-11286 Opinion of the Court 21
in the plan of the Convention.’” Reply Br. at 11 (quotation marks
omitted) (quoting Torres, 597 U.S. at 589). But the Board misun-
derstands the nature of plan-of-the-Convention waiver. The “com-
plete in itself” test isn’t applied statute-by-statute. In fact, it isn’t
applied to statutes at all; rather, it serves to evaluate which consti-
tutional powers qualify for plan-of-the-Convention treatment, as the
recent trio of plan-of-the-Convention cases illustrates. Katz wasn’t
just about whether some particular provision of the Bankruptcy
Code qualified for plan-of-the-Convention treatment; it was about
whether a waiver existed writ large “in the context of bankruptcy
proceedings.” PennEast, 594 U.S. at 500 (citing Katz, 546 U.S. at
379). PennEast wasn’t just about whether a particular federal stat-
ute authorized eminent domain proceedings against states; it was
about whether “the States consented at the founding to the exer-
cise of the federal eminent domain power.” Id. at 509. And Torres
wasn’t just about whether states could use sovereign immunity to
block USERRA suits; it was about whether “the States, in coming
together to form a Union, agreed to sacrifice their sovereign im-
munity for the good of the common defense.” 594 U.S. at 599.
When a constitutional power triggers plan-of-the-Convention
treatment, all suits filed under statutes that Congress enacted pur-
suant to that power escape state sovereign immunity. So, it’s a cat-
egory error to say that the active-duty and servicemember-family
leave provisions must themselves satisfy the “complete in itself”
test.
Second, the Board seems to suggest that the 2008 FMLA
amendments fail some kind of clear-statement rule. In seeking to
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 22 of 23
22 Opinion of the Court 23-11286
distinguish Torres, the Board argues that whereas “USERRA specif-
ically contemplates suits against state employers,” the FMLA “con-
tains no similar provision.” Reply Br. at 12 (citing 38 U.S.C. § 4323).
The Board is mistaken, for two reasons. As an initial matter, the
clear-statement rule is a function of abrogation doctrine, not plan-
of-the-Convention doctrine. See, e.g., Garrett, 531 U.S. at 363. In
the latter, Congress doesn’t need to clearly express an intent to ab-
rogate sovereign immunity because there isn’t any immunity to
abrogate—the states have waived it. See Allen, 589 U.S. at 258–59.
So long as Congress’s “determination that States should be amena-
ble” to suit “is within the scope of its power” under a constitutional
clause to which plan-of-the-Convention logic applies, then the
states are subject to suit—the Eleventh Amendment notwithstand-
ing. Katz, 546 U.S. at 379. Here, Congress enacted the 2008 FMLA
amendments pursuant to its military-supporting powers. That,
paired with Torres’s holding, is all we need to know.
Moreover, and in any event, the FMLA actually does clearly
contemplate suits against state employers—it authorizes aggrieved
employees to sue “any employer (including a public agency).” 29
U.S.C. § 2617(a)(2) (emphasis added). In Hibbs, the Court held that
this language satisfied the clear-statement rule that applies in the
abrogation context. See 538 U.S. at 726. Accordingly, the FMLA
satisfies any clear-statement rule that might apply.
* * *
USCA11 Case: 23-11286 Document: 39-1 Date Filed: 02/03/2025 Page: 23 of 23
23-11286 Opinion of the Court 23
Putting the pieces together, we conclude that Williams’s suit
may proceed.8 This is true regardless of whether she is alleging an
entitlement to family-care, active-duty, or servicemember-family
leave. If it’s family-care leave under § 2612(a)(1)(C), Hibbs dictates
that Congress has validly abrogated the Board’s immunity. And if
it’s active-duty leave under § 2612(a)(1)(E) or servicemember-fam-
ily leave under § 2612(a)(3), Torres shows that the Board doesn’t
have any immunity to assert—Alabama waived that immunity
when it joined the Union and acceded to the federal government’s
lead role in providing for the national defense.
IV
For the foregoing reasons, we AFFIRM the district court’s
denial of the Board’s motion to dismiss and REMAND for further
proceedings consistent with this opinion.
8 This conclusion applies to both Williams’s retaliation and her interference
claims. We “must consider sovereign immunity and any exceptions to it on a
claim-by-claim . . . basis.” Muscogee (Creek) Nation v. Rollin, 119 F.4th 881, 887
(11th Cir. 2024). But the sovereign immunity argument for both claims is pre-
cisely the same—that, pursuant to the purported underlying FMLA leave en-
titlement, sovereign immunity is either abrogated or waived.