State of Alaska v. Eeoc

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ALASKA, Office of the 

Governor,

Petitioner, No. 07-70174

v. Agency Nos.

EEOC; UNITED STATES OF  11A40004 &

AMERICA, 11A40005

Respondents, OPINION

MARGARET G. WARD,

Intervenor.



On Petition for Review of an Order of the

Equal Employment Opportunity Commission

Argued and Submitted

September 24, 2008—San Francisco, California

Filed May 1, 2009

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Diarmuid F. O’Scannlain, Sidney R. Thomas,

Barry G. Silverman, Kim McLane Wardlaw,

Marsha S. Berzon, Richard C. Tallman,

Consuelo M. Callahan, Milan D. Smith, Jr. and

Sandra S. Ikuta, Circuit Judges.

Opinion by Chief Judge Kozinski;

Partial Concurrence and Partial Dissent by

Judge O’Scannlain;

Dissent by Judge Ikuta

5061

STATE OF ALASKA v. EEOC 5065

COUNSEL

Brenda B. Page, Deputy State Attorney General for the State

of Alaska, Anchorage, Alaska, for the petitioner.

Nelson Cohen, United States Attorney, Anchorage, Alaska,

Ronald Cooper, Office of General Counsel, Washington, DC,

Stephen Llewellyn, Equal Employment Opportunity Commis-

sion, Washington, DC, Stephanie R. Marcus, Department of

Justice, Washington, DC, and Paul D. Ramshaw, Equal

Employment Opportunity Commission, Washington, DC, for

the respondents the Equal Employment Opportunity Commis-

sion.

Marleigh Dover, Department of Justice, Washington, DC, for

the respondents the United States.

Lee Holen, Anchorage, Alaska, and Samuel R. Bagenstos, St.

Louis, Missouri, for the intervenor.

OPINION

KOZINSKI, Chief Judge:

We must decide whether states have Eleventh Amendment

immunity from claims under the Government Employee

Rights Act of 1991 (GERA).

Facts

Lydia Jones and Margaret Ward worked in the office of

then-Governor Walter Hickel of Alaska. Both were fired

5066 STATE OF ALASKA v. EEOC

under disputed circumstances and filed complaints with the

Equal Employment Opportunity Commission. Jones alleged

that she was paid less because she is a black woman, sexually

harassed and then retaliated against for complaining about the

harassment. Ward alleged that she was paid less on account

of her sex and that she was terminated because of statements

she made supporting Jones’s complaint.

The EEOC assigned the cases to an administrative law

judge. Before the ALJ, Alaska argued that Jones and Ward’s

claims were barred by sovereign immunity. The ALJ dis-

agreed. On interlocutory appeal, the EEOC denied the sover-

eign immunity defense and remanded for further proceedings.

The state petitions for review of the EEOC’s decision.1

Analysis

[1] The Eleventh Amendment protects states from being

sued without their consent. This immunity applies by its terms

to the judicial power, but the Supreme Court has held that

1

A remand order is not a final agency decision, and so would not nor-

mally fall within our jurisdiction. Because this remand order turns on a

claim of sovereign immunity, however, a version of the collateral order

doctrine provides a basis for our jurisdiction here. See Cohen v. Beneficial

Loan Corp., 337 U.S. 541, 546 (1949); P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) (“States . . . may take

advantage of the collateral order doctrine to appeal a district court order

denying a claim of Eleventh Amendment immunity.”). Although the col-

lateral order doctrine is understood as a “construction” of 28 U.S.C.

§ 1291, Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863,

867 (1994) (internal citation omitted), it is also applicable by analogy in

the context of non-final agency determinations that meet the standards

articulated in Cohen. See, e.g., Fed. Trade Comm’n v. Standard Oil Co.

of Cal., 449 U.S. 229, 246 (1980); Meredith v. Fed. Mine Safety & Health

Rev. Comm’n, 177 F.3d 1042, 1050 (D.C. Cir. 1999). Because the EEOC’s

remand order turns on Alaska’s claim of sovereign immunity, and because

it otherwise meets Cohen’s requirements—it is “conclusive . . . [and]

resolve[s an] important question[ ] completely separate from the merits . . .

[that would be] effectively unreviewable on appeal from final judgment in

the underlying action,” Digital, 511 U.S. at 867—we may review it.

STATE OF ALASKA v. EEOC 5067

some administrative proceedings sufficiently resemble civil

actions to be circumscribed as well. Fed. Mar. Comm’n v.

S.C. State Ports Auth., 535 U.S. 743, 760-61 (2002). The con-

tours of that principle aren’t completely clear, but the parties

seem to agree that EEOC proceedings are sufficiently court-

like to implicate the Eleventh Amendment. We assume, with-

out deciding, that this is true.2

[2] Congress may abrogate this immunity in certain circum-

stances. To determine when it has validly done so, we must

“resolve two predicate questions: . . . whether Congress

unequivocally expressed its intent to abrogate” and, if so,

“whether Congress acted pursuant to a valid grant of constitu-

tional authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62,

73 (2000).

[3] 1. Congress’s intent to abrogate sovereign immunity in

the Government Employee Rights Act is both “unequivocal

and textual.” Dellmuth v. Muth, 491 U.S. 223, 230 (1989); see

also Atascadero v. Scanlon, 473 U.S. 234, 242 (1985). As its

title suggests, the statute is designed to give rights to govern-

ment employees, including state employees, against their

employers. The act amended Title VII to extend coverage of

its employment discrimination provisions to such government

employees: “[A]ny individual chosen or appointed, by a per-

son elected to public office in any State . . . to be a member

of the elected official’s personal staff,” as Jones and Ward

were, has rights under GERA to a workplace “free from any

discrimination based on . . . race, color, religion, sex, or

national origin.” 42 U.S.C. §§ 2000e-16c(a)(1), 2000e-

16b(a)(1). GERA authorizes the EEOC to order remedies for

2

We have independently determined that this assumption is plausible.

State government employees who file a claim with the EEOC are subject

to procedures that are quite different from those applicable to claims

against private employers. Compare 29 C.F.R. Part 1603 with 29 C.F.R.

Part 1601. The latter procedures are similar to mediation, whereas the for-

mer are adjudicative, much like those in Federal Maritime Commission.

5068 STATE OF ALASKA v. EEOC

violations of these rights, 42 U.S.C. § 2000e-16c(b)(1),

including “back pay (payable by the employer . . . responsible

for the unlawful employment practice).” 42 U.S.C. § 2000e-

16b(b)(1), cross-referencing 42 U.S.C. § 2000e-5(g) (empha-

sis added).

[4] A “general authorization for suit in federal court” is an

insufficient expression of congressional intent to abrogate

state sovereign immunity, Atascadero, 473 U.S. at 246, as are

inferences from legislative history and statutory purpose, Del-

lmuth, 491 U.S. at 230, 232. But Dellmuth and Atascadero

“do[ ] not preclude congressional elimination of sovereign

immunity in statutory text that clearly subjects States to suit

for monetary damages, though without explicit reference to

state sovereign immunity or the Eleventh Amendment.” Dell-

muth, 491 U.S. at 233 (Scalia, J. concurring).3 GERA’s text

makes congressional intent to abrogate state sovereign immu-

nity “unmistakably clear.” Atascadero, 473 U.S. at 242.

GERA expressly covers state employees, and expressly gives

them a right to collect damages “payable by the employer”—

the state. 42 U.S.C. § 2000e-5(g)(1) (emphasis added).

[5] The only way Congress could have been clearer would

have been to say “this act abrogates state sovereign immuni-

ty.” But the Supreme Court has made it quite plain that such

magic words are unnecessary. Twice it has considered statutes

with provisions like GERA’s—giving employees a cause of

action for damages, and separately providing that state

employers will pay—and twice it concluded that the statutes

adequately expressed Congress’s intent to abrogate state sov-

ereign immunity, even though neither statute includes the

terms “abrogate,” “state sovereign immunity” or “Eleventh

Amendment.” Kimel v. Florida Board of Regents, 528 U.S.

62 (2000), considered the Age Discrimination in Employment

3

As the fifth vote in the majority, Justice Scalia’s view as to the mean-

ing of the Court’s opinion (as expressed in his concurrence) is entitled to

substantial, if not controlling, weight.

STATE OF ALASKA v. EEOC 5069

Act (ADEA). One section of the ADEA incorporates an

enforcement provision from a separate statute, the Fair Labor

Standards Act (FLSA), “authoriz[ing] employees to maintain

actions for backpay ‘against any employer (including a public

agency) in any Federal or State court of competent jurisdic-

tion.’ ” 528 U.S. at 67-68, 73-74 (quoting 29 U.S.C. § 216(b),

as cross-referenced in 29 U.S.C. § 626(b)). A separate section

of the FLSA defines “public agency” to include “the govern-

ment of a State or political subdivision thereof.” Id. at 74

(quoting 29 U.S.C. § 203(x)). The Court held that “[r]ead as

a whole, the plain language of these provisions clearly dem-

onstrates Congress’ intent to subject the States to suit for

money damages at the hands of individual employees,” id. at

74, explaining that “our cases have never required that Con-

gress make its clear statement in a single section or in statu-

tory provisions enacted at the same time,” id. at 76.

[6] Nevada Department of Human Resources v. Hibbs, 538

U.S. 721 (2003), likewise held that provisions of the Family

and Medical Leave Act (FMLA) unequivocally expressed

Congress’s intent to abrogate state sovereign immunity. Like

the ADEA, the FMLA authorizes suits against employers, and

incorporates a definition of employers that includes public

agencies, and a definition of public agencies that includes

states, but doesn’t refer to state sovereign immunity or the

Eleventh Amendment. GERA is cut from the same cloth as

the ADEA and the FMLA; its reference to states as potential

defendants who must answer in damages is as clear, and its

focus on government employers sharper, than in these two

other statutes. GERA’s provisions, entitling state employees

to “back pay . . . payable by the employer,” 42 U.S.C.

§§ 2000e-5(g)(1), 2000e-16c, unmistakably express Con-

gress’s intent to allow suits against states for damages. As in

Kimel and Hibbs, “[t]he clarity of Congress’ intent here is not

fairly debatable.” Hibbs, 538 U.S. at 726. The remaining

question, to which we now turn, is whether Congress had the

authority to do what it intended.

5070 STATE OF ALASKA v. EEOC

[7] 2. Section 5 of the Fourteenth Amendment empowers

Congress to “enforce, by appropriate legislation, the provi-

sions of” that article, and state sovereign immunity may be

abrogated in service of this goal. There are two ways in which

Congress can do this. First, Congress may prohibit and pro-

vide a remedy for conduct that actually violates the Amend-

ment. E.g., United States v. Georgia, 546 U.S. 151, 158

(2006) (upholding a prohibition against cruel and unusual

treatment of prisoners). Second, legislation “which deters or

remedies constitutional violations can fall within the sweep of

Congress’ enforcement power even if in the process it prohib-

its conduct which is not itself unconstitutional.” City of

Boerne v. Flores, 521 U.S. 507, 518 (1997). We refer to the

latter kind of legislation as prophylactic, and it must satisfy

certain strict requirements designed to ensure that Congress

doesn’t substantively redefine the Fourteenth Amendment’s

guarantees. Before we can uphold prophylactic legislation, we

must be convinced that it is congruent and proportional to the

harm that Congress sought to prevent, and we often examine

legislative findings as part of that inquiry. Id. at 520. But the

congruence and proportionality requirement applies only to

prophylactic legislation; it doesn’t apply to a direct remedy

for unconstitutional conduct.

[8] We therefore consider first whether Jones and Ward

allege actual violations of the Fourteenth Amendment by the

State of Alaska. If they do, we needn’t decide whether GERA

is valid prophylactic legislation. As Georgia indicates by its

method, see 546 U.S. at 158-60, when legislation provides a

direct remedy for unconstitutional conduct, the Boerne

inquiry is superfluous. The merits of these claims (and Alas-

ka’s various defenses) aren’t before us; we consider only

whether each claim alleges conduct that, if it occurred and

wasn’t justified by a valid defense, would have violated the

Fourteenth Amendment.

[9] a. This inquiry is straightforward for Jones and Ward’s

pay discrimination claims. Jones alleges that she was “paid

STATE OF ALASKA v. EEOC 5071

less than [her] male counterparts” by the Governor’s Office,

and that “this was intentionally imposed due to [her] sex,

female and [her] race, black.” Ward alleges that the Governor

“treated [her] differently than [her] counterparts due to [her]

sex, female,” specifically by paying her less than a male coun-

terpart. Intentional race discrimination violates equal protec-

tion unless narrowly tailored to serve a compelling state

interest. See Washington v. Davis, 426 U.S. 229, 239 (1976).

Disparate treatment on the basis of sex requires an “exceed-

ingly persuasive justification.” Miss. Univ. for Women v.

Hogan, 458 U.S. 718, 724 (1982). The state has claimed no

such interest or justification, and we’d be hard-pressed to fig-

ure out what it might be. The alleged pay discrimination, if it

happened, denied Jones and Ward equal protection of the law.

b. We next consider Jones’s allegations of workplace

harassment. She alleges that she was “the butt of sexual

jokes” and “unsolicited physical contact.” According to her

complaint, one of the Governor’s top deputies approached her

from behind and placed his hand between her legs and, on a

separate occasion, approached her as if to grab her breasts.

Jones further alleges that she was retaliated against “for filing

a . . . complaint of sexual h[a]rassment.”

[10] While the Supreme Court hasn’t specifically consid-

ered whether sexual harassment of a governmental employee

can violate the Equal Protection Clause, several of our sister

circuits have concluded that it can, and we agree. See, e.g.,

Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550

(5th Cir. 1997) (“[S]exual harassment in public employment

violate[s] the Equal Protection Clause of the Fourteenth

Amendment.”) (collecting cases); Andrews v. City of Phila-

delphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (sustaining sec-

tion 1983 liability for sexual harassment); Bohen v. City of

East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986) (“[S]exual

harassment by a state employer . . . constitutes sex discrimina-

tion in violation of the equal protection clause.”).

5072 STATE OF ALASKA v. EEOC

Because the suit is against Alaska, not the man who alleg-

edly harassed Jones, we must consider whether Jones alleged

that the state violated her Equal Protection rights. Jones can-

not make such an allegation under a theory of respondeat

superior; she must allege that Alaska has intentionally dis-

criminated against her. Davis, 426 U.S. at 239; see also

Andrews, 895 F.2d at 1480. While Jones has not alleged that

the Governor’s Office intentionally discriminated against her

through an official policy promoting sexual harassment, the

office may nevertheless have violated the Equal Protection

Clause by intentionally refusing to redress the sexual harass-

ment of Jones by another employee.4 See Bohen, 799 F.2d at

1187 (holding that a government employee can make “a claim

of sexual harassment under the equal protection clause” by

“showing that the conscious failure of the employer to protect

the plaintiff from the abusive conditions created by fellow

employees amounted to intentional discrimination”).

[11] Jones alleges that she reported the sexual harassment,

and that the Governor’s Office responded by punishing her,

rather than disciplining her harasser. This alleged conduct, if

true, would constitute intentional sexual discrimination by the

state. Jones need not allege that other state employees were

harassed as well, or that the Governor’s Office routinely

failed to respond to such harassment, to make out an Equal

Protection claim. Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 266 n.14 (1977); Bohen, 799 F.2d at

1186-87 (“[A] single discriminatory act against one individual

can amount to intentional discrimination for equal protection

purposes. An equal protection plaintiff therefore need not

prove a discriminatory policy against an entire class; discrimi-

4

We need not and do not decide whether other types of sexual harass-

ment claims brought against governmental entities under Title VII or

GERA also state violations of the Equal Protection Clause. See Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (discussing types of sexual

harassment claims that can be brought against employers under Title VII);

O’Scannlain concurrence at 5078-80.

STATE OF ALASKA v. EEOC 5073

nation against the plaintiff because of her membership in the

class is by itself enough.”) (citations omitted).

[12] c. Finally, we consider Ward’s claim of retaliatory

discharge. Unlike the pay disparity and sexual harassment

claims, this claim doesn’t allege differential treatment because

of race or sex. Rather, Ward complains that she was punished

for speaking up about the harassment of Jones. The Four-

teenth Amendment’s Due Process Clause incorporates the

First Amendment’s free speech guarantees, so if Ward has

alleged conduct that would violate the First Amendment,5

then GERA abrogates state immunity as to that claim as well.6

Ward alleges that, after she was interviewed at work

regarding Jones’s sexual harassment charge, she received

phone calls threatening termination “if [she] did not back off.”

Ward instead held a press conference, publicly supporting

Jones’s allegations of sexual harassment in the Governor’s

Office. The Governor’s Office then placed Ward on leave

while it investigated her “participation in [the] March 9, 1994,

press conference, and whether, through that participation,

[she] breached [her] duty of loyalty to [her] employer.” At the

close of the investigation, Ward was terminated.

[13] The First Amendment prohibits state retaliation

against a public employee for speech made as a citizen on a

matter of public concern. Connick v. Myers, 461 U.S. 138,

146-47 (1983). We have held that complaints of sexual

5

As Jones’s retaliatory discharge claim alleges conduct that would vio-

late the Equal Protection clause, we do not consider whether it also alleges

conduct that would violate the First Amendment.

6

Ward is not seeking relief directly under the First Amendment, just as

she and Jones are not seeking relief for discriminatory treatment under the

Fourteenth. The relief Ward seeks is under GERA and her theory, as we

understand it, is that she was retaliated against for exercising her GERA

rights and that this is itself a GERA violation. Whether this is true is a

matter to be answered by the EEOC in the first instance; we express no

view.

5074 STATE OF ALASKA v. EEOC

harassment can constitute such speech. Freitag v. Ayers, 468

F.3d 528, 545 (9th Cir. 2006); see also Connick, 461 U.S. at

148 n.8 (racial discrimination in a public workplace is “a mat-

ter inherently of public concern”). Ward was alleging miscon-

duct in the Governor’s Office: mistreatment of some Alaskans

because of race and sex. The allegations were made publicly,

as well as through internal channels, and received press cover-

age. The allegations could have affected the gubernatorial

race and had far-reaching effects on Alaskan politics; the pub-

lic interest in such allegations is plain. The Governor’s Office

has admitted that it placed Ward on leave and began the

investigation that led to her firing because of Ward’s public

statements: “Following that press conference, [Ward was]

placed on paid, administrative leave because [her] conduct

was contrary to the Governor’s interests and because we

wanted [her] out of the office so that we could conduct an

unimpeded investigation.”

[14] That Ward’s statements arose out of Jones’s employ-

ment grievance doesn’t mean Ward wasn’t speaking as a citi-

zen on a matter of public concern. Unlike the employee in

Connick, Ward was not speaking about her “personal employ-

ment dispute,” nor were her comments directed solely at co-

workers. 461 U.S. at 148 n.8. Rather, Ward held a press con-

ference to protest what she saw as sex discrimination in the

Governor’s Office. The Supreme Court has held that such

public criticism by government employees of their employers

is protected speech. Pickering v. Bd. of Ed., 391 U.S. 563

(1968); see Givhan v. W. Line Consol. Sch. Dist., 439 U.S.

410 (1979).

[15] “[W]hen public employees make statements pursuant

to their official duties, the employees are not speaking as citi-

zens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.”

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); O’Scannlain

dissent at 5082-84. But Ward’s official duties didn’t require

her to complain about the conditions of Jones’s employment,

STATE OF ALASKA v. EEOC 5075

or to bring the alleged sexual harassment to the public’s atten-

tion.7 Cf. Garcetti, 547 U.S. at 421 (“[Complainant] wrote his

. . . . memo because that is part of what he . . . was employed

to do.”). Her speech at the press conference was her own. Cf.

Pleasant Grove City v. Summum, No. 07-665, slip op. at 8, 10

(S. Ct. Feb. 25, 2009) (government speech is financed, com-

missioned or controlled by the government). Because retalia-

tion for this kind of speech violates the First Amendment as

incorporated into the Due Process Clause, Congress has the

power to provide a private remedy for it. Georgia, 546 U.S.

at 158.

7

Judge O’Scannlain argues that an aide to a high-ranking official has no

First Amendment right to air his policy differences with the administra-

tion. O’Scannlain dissent at 5084. We needn’t consider this interesting

hypothetical, because, as the first part of Judge O’Scannlain’s opinion ably

explains, “although states can . . . adopt policies that treat women differ-

ently . . . they do not often . . . adopt policies to harass women sexually.”

Id. at 5078. It’s a bit like saying that, when an employee discloses that the

Governor is taking bribes, the employee is airing his differences with the

official policy of accepting bribes. Ward was exposing the office’s alleged

illegal practice of tolerating sexual harassment; such criticisms can cer-

tainly be the basis for a First Amendment claim. See Johnson v. Multno-

mah County, 48 F.3d 420, 425-26 (9th Cir. 1995) (government employee

retaliated against for publicly accusing her boss of running a “good old

boy network” can bring a First Amendment claim). Whether Ward’s dis-

loyalty and disruption of the office provided a valid basis for firing her

and outweighed her speech interest is not at issue here. We are not decid-

ing whether Ward should prevail on her First Amendment claim; we

merely hold that it is a First Amendment claim. See Eng v. Cooley, 552

F.3d 1062, 1070-72 (9th Cir. 2009) (to make a First Amendment retalia-

tion claim, government employee must allege that the speech addressed an

issue of public concern, was spoken in the employee’s capacity as a pri-

vate citizen and that the employer took adverse action against the

employee because of the speech; burden then shifts to the government to

show that its legitimate administrative interests outweigh the employee’s

First Amendment rights or that the adverse action would have been taken

absent the speech).

5076 STATE OF ALASKA v. EEOC

Conclusion

[16] Each of Jones and Ward’s claims allege actual viola-

tions of the Fourteenth Amendment. GERA has validly abro-

gated Alaska’s sovereign immunity with respect to these

claims. The petition for review is therefore denied and the

case is remanded to the EEOC for further proceedings.

DENIED.

O’SCANNLAIN, Circuit Judge, concurring in part and dis-

senting in part:

Although I agree with the court’s determination that the

allegations of sex discrimination, if true, would establish that

the State of Alaska, through its Governor’s Office, violated

the Constitution’s Equal Protection Clause, I do not think the

same can be said for the allegation of retaliatory discharge in

violation of the First Amendment. In my view, that claim does

not state an actual constitutional violation. We must therefore

analyze the statute under which the claim is made, the Gov-

ernment Employee Rights Act of 1991 (“GERA”), to deter-

mine whether it is valid prophylactic legislation under section

5 of the Fourteenth Amendment. See generally City of Boerne

v. Flores, 521 U.S. 507 (1997). I believe GERA fails such

scrutiny. With respect, I must dissent from the court’s opinion

insofar as it holds that Alaska’s sovereign immunity does not

preclude the claim of retaliatory discharge.

I

Section 5 of the Fourteenth Amendment grants Congress

the “power to enforce, by appropriate legislation, the provi-

sions of [the Fourteenth Amendment].” U.S. Const. amend.

XIV, § 5. As the majority correctly explains, in order for Con-

gress to abrogate state sovereign immunity pursuant to this

STATE OF ALASKA v. EEOC 5077

enforcement power, it must “unequivocally express[ ] its

intent to abrogate that immunity” and “act[ ] pursuant to a

valid grant of constitutional authority.” Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 73 (2000). Although I believe it to be

a close question, and Judge Ikuta’s conscientious dissent to

the contrary notwithstanding, it seems to me that Congress did

express its intent to abrogate sovereign immunity in the

GERA. With respect to the second requirement, Congress acts

pursuant to a valid grant of constitutional authority if it either

passes so-called “prophylactic legislation” or enacts remedies

for actual violations of the Constitution. For “purportedly pro-

phylactic legislation [to] constitute[ ] appropriate remedial

legislation, . . . ‘there must be a congruence and proportional-

ity between the injury to be prevented or remedied and the

means adopted to that end.’ ” Kimel, 528 U.S. at 81 (quoting

Boerne, 521 U.S. at 520). Actual remedial laws, as the major-

ity points out, do not have to meet this test. See United States

v. Georgia, 546 U.S. 151, 158 (2006) (“[N]o one doubts that

§ 5 grants Congress the power to enforce the provisions of the

Amendment by creating private remedies against the States

for actual violations of those provisions.” (internal quotations

marks and alteration omitted)).

A crucial threshold question, then, is whether a given claim

against a state alleges conduct that would violate the Four-

teenth Amendment to the Constitution. The allegations of pay

discrimination state straightforward violations of the Equal

Protection Clause, and I join the majority’s opinion on that

issue in its entirety. With respect to the claim of sex discrimi-

nation stemming from Jones’ sexual harassment complaint, I

concur in the result but remain wary of some of the majority’s

reasoning. Finally, I must disagree entirely with the majority’s

analysis of the purported First Amendment claim of retalia-

tory discharge, an analysis that wrongly enlarges the constitu-

tional implications of employment decisions at the highest

levels of state government.

5078 STATE OF ALASKA v. EEOC

A

While I agree with the majority’s conclusion regarding the

so-called sexual harassment issue, I wish to clarify that I read

the majority opinion to hold no more than that it would vio-

late the Equal Protection Clause if a state deliberately refused

to protect its female employees from sexual harassment. In

other words, it is not the sexual harassment that Jones alleg-

edly suffered, as such, that generates her constitutional claim.

After all, she does not claim that the State of Alaska, through

the official acts of its agents, sexually harassed her. Rather,

the constitutional claim properly rests on Jones’s allegation

that the Governor’s Office, an arm of the State, responded to

her formal complaint of sexual harassment by firing her.

It is worth pausing to consider this claim carefully, for it is

not the ordinary instance of unconstitutional discrimination.

In most suits against a state where sexual harassment is

involved, it will make more sense to characterize the claim

not as one for sexual harassment “but as a claim of failure to

protect against such harassment.” Bohen v. City of East Chi-

cago, 799 F.2d, 1180, 1189 (7th Cir. 1986) (Posner, J., con-

curring). This is because, although states can pass laws or

adopt policies that treat women differently in hiring, pay, or

other official emoluments of employment, they do not often

pass laws or adopt policies to harass women sexually. How-

ever, “[i]f a state or city deliberately refused to provide police

protection for women, it would be violating the equal protec-

tion clause” regardless of whether those who harassed them

were state actors. Id. at 1190. In order for such a claim to suc-

ceed, there would have to be “a policy of nonresponse to com-

plaints of harassment, or an authoritative decision not to

respond.” Id. In view of these considerations, I understand the

majority to hold that Alaska’s “authoritative decision not to

respond” to Jones’ formal complaint, but to fire her instead,

if that is what happened, violated the Equal Protection Clause.

STATE OF ALASKA v. EEOC 5079

The logical corollary to this holding is that sexual harass-

ment, as such, does not ordinarily violate the Equal Protection

Clause.1 This is because discrimination can only violate equal

protection if it is intentional and done by the state. Cf. Wash-

ington v. Davis, 426 U.S. 229, 238-45 (1976) (holding that

evidence of discriminatory intent is necessary to make out an

equal protection violation assuming the government action is

neutral on its face). The actions of the Governor’s aide in this

case would not bring liability on Alaska unless the state offi-

cially sanctioned them. As the majority recognizes, the Con-

stitution cannot support liability against the state for

constitutional torts on the agency law theory of respondeat

superior. Maj. Op. at 5072.

Thus, there is a crucial limitation to the majority’s state-

ment that sexual harassment can state a violation of the Equal

Protection Clause, see Maj. Op. at 5071. This possibility is

limited by the bedrock constitutional principle I have dis-

cussed: sexual harassment will state a violation only where

there is intentional discrimination by the state.

I dwell on this caveat in order to emphasize that, without

it, we would constitutionalize the type of claim employees

might bring under Title VII. Such a result would be directly

contrary to Supreme Court precedent. See Davis, 426 U.S. at

239 (“We have never held that the constitutional standard for

adjudicating claims of invidious racial discrimination is iden-

tical to the standards applicable under Title VII, and we

decline to do so today.”). And the cases from sister circuits on

which the majority relies followed the Court’s guidance. As

the majority opinion stated in Bohen, “the ultimate inquiry,”

1

I hasten to add that the conduct Jones complained of is outrageous and

unsavory; I do not mean to condone it in any way. At the same time, we

should acknowledge that the State of Alaska has not conceded the truth of

the allegations either of Jones or of Ward. Indeed, there seems to be vigor-

ous dispute about the facts underlying their dismissal from the Governor’s

Office.

5080 STATE OF ALASKA v. EEOC

where someone alleges sexual harassment as a violation of

equal protection, “is whether the sexual harassment consti-

tutes intentional discrimination. This differs from the inquiry

under Title VII as to whether or not the sexual harassment

altered the condition of the victim’s employment.” Bohen,

799 F.2d at 1187.

Thus, I agree with the majority that Jones’ claim—that the

Governor’s Office fired her rather than respond to her com-

plaint of sexual harassment—states a violation of the Equal

Protection Clause. But it is not the alleged sexual harassment

but rather the “authoritative decision not to respond,” Bohen,

799 F.2d at 1190, that justifies such conclusion.

B

Turning now to Ward’s allegation of retaliatory discharge

in violation of the First Amendment, as incorporated against

the states through the Fourteenth, I note that, at oral argument,

counsel for Ward admitted that his client’s actual, First

Amendment claim under the relevant case law was a “tough”

one to make out. No wonder. This case, it seems to me, is a

prototypical example of an employee’s attempt to “constitu-

tionalize [an] employee grievance,” a practice that the

Supreme Court has explicitly discouraged. See Connick v.

Myers, 461 U.S. 138, 154 (1983). But it goes farther even

than that, for Ward attempts to constitutionalize a political

spat over her loyalty to the administration of Alaska’s Gover-

nor. With respect, the majority’s approval of Ward’s novel

theory opens up a new frontier in this area of constitutional

law, which, I believe, contravenes the spirit, if not the letter,

of the Supreme Court’s decisions on the subject.

1

In general, “[w]hen a citizen enters government service, the

citizen by necessity must accept certain limitations on his or

her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

STATE OF ALASKA v. EEOC 5081

This is because the “government as employer indeed has far

broader powers than does the government as sovereign.” Id.

(quoting Waters v. Churchill, 511 U.S. 661, 671 (1994) (plu-

rality opinion)). The reason the government would violate the

First Amendment at all by firing one of its employees on

account of what he or she said is that employees, as citizens,

“retain the prospect of constitutional protection for their con-

tributions to the civic discourse.” Id. at 422. It is thus neces-

sarily within that context that we apply the doctrinal test for

whether a public employee has alleged a First Amendment

violation for retaliatory discharge.

Such test has two parts. First, unless “the employee spoke

as a citizen on a matter of public concern[,] . . . . the employee

has no First Amendment cause of action based on his or her

employer’s reaction to the speech.” Id. at 418. Only if the

employee passes this threshold does “the possibility of a First

Amendment claim arise[ ].” Id. (emphasis added). A court

must then evaluate that possibility under the balancing test of

Pickering v. Board of Education of Township High School

District 205. See 391 U.S. 563, 568 (1968); Garcetti, 547

U.S. at 418.

At the threshold stage, as Garcetti illustrated, First Amend-

ment protection attaches only to speech analogous to that

which an ordinary citizen would make as part of public dis-

course. 547 U.S. at 423 (“Employees who make public state-

ments outside the course of performing their official duties

retain some possibility of First Amendment protection

because that is the kind of activity engaged in by citizens who

do not work for the government.”). The First Amendment

does not give more license to government employees than

ordinary citizens. This is the meaning of the Supreme Court’s

admonition that the First Amendment neither “invest[s] [pub-

lic employees] with a right to perform their jobs however they

see fit,” nor “empower[s] them to constitutionalize the

5082 STATE OF ALASKA v. EEOC

employee grievance.” Id. at 420, 422 (internal quotation

marks omitted).2

2

As I read the precedents, Ward has failed to state a claim

under the First Amendment for retaliatory discharge.

To state a First Amendment claim, the employee must

show that he or she spoke not as an employee, but as a private

citizen in public discourse. See Garcetti, 547 U.S. at 418-25.

The majority’s analysis on this point addresses the require-

ments of “speech as a citizen” and “matter of public concern”

in rather narrow terms. To be sure, they are two distinct

requirements for constitutional protection. Ceballos v. Gar-

cetti, 361 F.3d 1168, 1186-87 (9th Cir. 2004) (O’Scannlain,

J., specially concurring) (insisting on both the “speech as a

citizen” and “matter of public concern” prongs of the thresh-

old inquiry), overruled by Garcetti, 547 U.S. at 426. But the

idea behind the caselaw is to ensure that public employees are

still able to participate in public debate, not to provide them

job security while they pursue their own ends. See, e.g., Pick-

ering, 391 U.S. at 573 (rejecting the school’s attempt to

“limit[ ] teachers’ opportunities to contribute to public

debate”); see also Garcetti, 547 U.S. at 419 (“The Court has

acknowledged the importance of promoting the public’s inter-

est in receiving the well-informed views of government

2

We have also recently clarified that, at the second, balancing stage,

“the plaintiff bears the burden of showing the state took adverse employ-

ment action and that the speech was a substantial or motivating factor in

the adverse action.” Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009)

(internal quotation marks and alterations omitted). If the plaintiff carries

that burden, then the government must show that, under Pickering, its “le-

gitimate administrative interests outweigh the employee’s First Amend-

ment rights” or that it would have made the same decision without the

employee’s protected speech. Id. at 1071-72 (internal quotation marks

omitted). In my view, for the plaintiff to state a First Amendment claim,

he or she must meet at least the initial burden under Eng.

STATE OF ALASKA v. EEOC 5083

employees engaging in civic discussion.”). We must keep our

eye on the ball here, for the case before us throws something

of a curve.

The typical situation requires a court to determine whether

speech was primarily an internal office matter or a contribu-

tion to the public debate. See, e.g., Connick, 461 U.S. at 140

(considering “whether the First and Fourteenth Amendments

prevent the discharge of a state employee for circulating a

questionnaire concerning internal office affairs”). But this

case involves policymaking staff in the office of the chief

executive of the State of Alaska. Thus, the internal office poli-

tics are also the politics of the state. In this context, it contra-

venes the spirit of Garcetti and its predecessors to hold that,

even though Ward criticized the Governor on a subject of

public interest the Governor cannot constitutionally fire her

for disloyalty.

The majority spends time illustrating that Ward’s speech

was not part of her official duties, which is surely correct.

Garcetti does not squarely dictate the result in this case for

that reason. Maj. Op. at 5074-75; Garcetti, 547 U.S. at 421

(“We hold that when public employees make statements pur-

suant to their official duties, the employees are not speaking

as citizens for First Amendment purposes.”). But the control-

ling ratio decidendi of Garcetti casts a longer shadow. The

importance of the official nature of the speech in Garcetti lay

in the distinction between speech that ordinary citizens make

and speech that only occurs because of employment with the

government. “Restricting speech that owes its existence to a

public employee’s professional responsibilities,” the Court

insisted, “does not infringe any liberties the employee might

have enjoyed as a private citizen.” Id. at 421-22. Garcetti

explicitly contrasted such speech with “the expressions made

by the speaker in Pickering, whose letter to the newspaper

had no official significance and bore similarities to letters

submitted by numerous citizens every day.” Id. at 422.

5084 STATE OF ALASKA v. EEOC

Thus, although Ward’s press conference was not strictly

part of her official duties, her importance in the Governor’s

administration necessarily means that more of her conduct

came within the legitimate purview of her employer. The

Supreme Court has emphasized the need to “afford[ ] govern-

mental employers sufficient discretion to manage their opera-

tions.” Id. at 422. Nowhere is such discretion more important

than at the highest levels of state government. At those levels,

loyalty to the administration on matters of public concern is

in a sense the price of employment. Ward chose to go public

with one side of an internal struggle among the Governor’s

policy aides. The Governor’s Office considered this to be dis-

loyal and fired her. Especially in the context of a governor’s

office, this is a classic employment decision of the kind the

Supreme Court has warned should not “bec[o]me a constitu-

tional matter.” Connick, 461 U.S. at 143. We must remember

that “a federal court is not the appropriate forum in which to

review the wisdom of [such] a personnel decision.” Id. at 147.

It helps to consider analogies. Take the example of an aide

to a governor who criticizes publically the governor’s tax pol-

icy in a press conference. Such speech would be an undoubted

contribution to the public debate, but would it violate the First

Amendment if the governor fired the aide for disloyalty? I

think not, and I imagine the majority would agree. And if the

aide criticized not tax policy but the governor’s policy regard-

ing internal complaints of sexual harassment? The result is the

same, even though the subject of the criticism is a potentially

illegal practice (ignoring sexual assault on female employees).3

3

The majority conflates the supposed policy of ignoring illegality with

the illegality itself, quoting back to me my observation that states some-

times adopt policies to treat women differently but not usually to harass

them sexually. Maj. Op. 5075 n. 7. This only confuses the issue. My point

is that the scope of an employee grievance, as opposed to a contribution

as a citizen to public debate, necessarily widens the higher one climbs up

the ladder of government.

STATE OF ALASKA v. EEOC 5085

Such a result would only seem harsh from the myopic per-

spective of the conviction that the Constitution must provide

remedies for all harms. We can, and should, take allegations

like those Ward made very seriously without invoking the

First Amendment. “As the [Supreme] Court noted in Connick,

public employers should, ‘as a matter of good judgment,’ be

‘receptive to constructive criticism offered by their employ-

ees.’ ” Garcetti, 547 U.S. at 425 (quoting Connick, 461 U.S.

at 149). Indeed, “[t]he dictates of sound judgment are rein-

forced by the powerful network of legislative enactments—

such as whistle-blower protection laws and labor codes—

available to those who seek to expose wrongdoing.”4 Id. In the

appropriate circumstances, we must rely on such customary

and legislative protections if we are to avoid “constitution-

aliz[ing] the employee grievance.” Connick, 461 U.S. at 154.

II

My conclusion that the allegation of retaliatory discharge

does not state an actual violation of the Constitution compels

me to address, insofar as the claim is remediable under the

GERA, whether that statute constitutes valid “congruent and

proportional” legislation under the Supreme Court’s Boerne

test.

A

Congress’ power to enforce the Fourteenth Amendment

under section 5 does not allow it “to decree the substance of

the Fourteenth Amendment’s restrictions on the States. Legis-

lation which alters the meaning of the [Fourteenth Amend-

ment] cannot be said to be enforcing [it].” Boerne, 521 U.S.

at 519. Boerne requires that for “purportedly prophylactic leg-

islation [to] constitute[ ] appropriate remedial legislation, . . .

‘there must be a congruence and proportionality between the

4

Alaska, in fact, has such a whistle-blower protection law. Alaska Stat.

39.90.100-.150.

5086 STATE OF ALASKA v. EEOC

injury to be prevented or remedied and the means adopted to

that end.’ ” Kimel, 528 U.S. at 81 (quoting Boerne, 521 U.S.

at 520).

Because prophylactic legislation prohibits or regulates con-

stitutional conduct that supposedly leads to unconstitutional

conduct, Congress must explain its belief that regulating the

former will help to prevent the latter. See Boerne, 521 U.S. at

51-20. Such requirement responds to the Supreme Court’s

concern in Boerne that Congress not “decree the substance of

the Fourteenth Amendment’s restrictions” under the guise of

enforcing them. Id. at 519. The Supreme Court has outlined

a three-step test for determining congruence and proportional-

ity. “The first step . . . is to identify with some precision the

scope of the constitutional right at issue.” Bd. of Trustees of

the Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001). Next,

Congress must have identified a history and “pattern of con-

stitutional violations” by the states. Fla. Prepaid Postsecon-

dary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627,

639-640 (1999); see also Garrett, 531 U.S. at 368. Finally,

legislation must be in fact “congruent and proportional,” in

light of Congress’ factual findings, “to the targeted violation.”

Garrett, 531 U.S. at 374. It seems to me that the crucial step

in this case is the second one—the requirement that Congress

identify a pattern of constitutional violations. One way courts

pursue this inquiry is “by examining the legislative record

containing the reasons for Congress’ action.” Kimel, 528 U.S.

at 88.

The parties do not dispute that, when Congress enacted the

GERA in 1991, it made no findings regarding discrimination

against state employees at the policy-making level. When it

passed the Equal Employment Opportunity Act in 1972, how-

ever, Congress did make extensive factual findings. H.R. Rep.

No. 92-238, at 19 (1971), reprinted in 1972 U.S.C.C.A.N.

2137, 2152 (noting the existence of “widespread discrimina-

tion against minorities . . . in State and local government

employment, and that the existence of this discrimination is

STATE OF ALASKA v. EEOC 5087

perpetuated by the presence of both institutional and overt

discriminatory practices”). The EEOC would like us to con-

sider the latter findings in evaluating the former law for pur-

poses of the Boerne test.

The EEOC’s theory is that, with the GERA, Congress

merely finished the job it started in 1972 when it amended

Title VII to cover the States as employers. It cites extensive

language from Supreme Court opinions and congressional

records to show that gender discrimination persisted in state

government as of 1991 the way it had existed in 1972.5 But

all of the passages the EEOC quotes speak of gender discrimi-

nation in general, not at the policymaking levels of state gov-

ernment to which the GERA applies. The EEOC argues that

it need not present such particularized congressional findings.

It cites for support Justice Powell’s concurrence in Fullilove

v. Klutznick, 448 U.S. 448 (1980). But the question is what

the more recent Boerne requires. A concurrence published

seventeen years before Boerne is not probative of that ques-

tion.

Furthermore, even if one could consider the 1972 findings,

they do not pertain to the policymaking staff covered by the

GERA. In 1972, Congress did find widespread discrimination

in state and local government and it acted to prevent it, but it

specifically excluded personal and policymaking staff. That is

part of the background against which Congress legislated

when it enacted the GERA. If one wants to impute congres-

sional intent to that exclusion, the only responsible imputation

is that Congress did not believe a remedy was necessary with

respect to policy-making employees. That is to say, if there is

5

There is no attempt to show congressional concern for the violation of

First Amendment rights per se. The EEOC’s and Intervenor Ward’s argu-

ment seems to be that preventing retaliatory discharges against state

employees for complaining about sexual harassment is part of Congress’

prophylactic remedy for unconstitutional gender discrimination. It there-

fore stands or falls with the legitimacy of prophylactic remedies for

employment discrimination.

5088 STATE OF ALASKA v. EEOC

any reason to believe what one reads in committee reports, the

official position of the relevant House Committee belies the

EEOC’s position. In a section of the committee report entitled

“Need for the Bill,” it declared that the “time ha[d] come to

bring an end to job discrimination once and for all,” and that

“[i]t is essential that . . . effective enforcement procedures be

provided the [EEOC] to strengthen its efforts to reduce dis-

crimination in employment.” H.R. Rep. No. 92-238, at 2139-

41. It would follow logically from this language that whatever

levels of state and local employment Congress exempted from

the 1972 Act’s reach did not suffer from the job discrimina-

tion that so concerned the House Committee.

The background against which Congress enacted the

GERA, therefore, does not illustrate that Congress had

already found a pattern of unconstitutional discrimination at

the policymaking level of state and local employment. Instead

it shows that Congress had excluded employees at that level

from protection. Because Congress explicitly excluded poli-

cymaking employees from Title VII’s reach in 1972, I do not

believe this court would be justified in using the findings

Congress made in doing so to support its decision in 1991 to

repeal that very exclusion.

Without the 1972 findings, the EEOC can point to no evi-

dence that Congress identified, as the Supreme Court has

required it to do, a history and pattern of violations of the con-

stitutional rights of the states against high-level personal and

policy-making employees. This compels me to conclude that

the GERA is not “congruent and proportional” legislation

within the meaning of Boerne. It therefore cannot constitute

a valid abrogation of state sovereign immunity.

Neither the EEOC nor the federal courts are empowered to

entertain the non-constitutional claim against the State of

Alaska, which, as I have explained, is precisely Ward’s retali-

ation claim. I must respectfully dissent from the majority’s

conclusion to the contrary.

STATE OF ALASKA v. EEOC 5089

IKUTA, Circuit Judge, with whom Judges TALLMAN and

CALLAHAN join, dissenting:

To determine whether Congress validly abrogates a state’s

sovereign immunity, we must answer two questions: “first,

whether Congress unequivocally expressed its intent to abro-

gate that immunity; and second, if it did, whether Congress

acted pursuant to a valid grant of constitutional authority.”

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). With

respect to the first question, the Supreme Court has explained

that Congress’s intent must be both “unequivocal and textu-

al.” Dellmuth v. Muth, 491 U.S. 223, 230 (1989); accord

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)

(“Congress may abrogate the States’ constitutionally secured

immunity from suit in federal court only by making its inten-

tion unmistakably clear in the language of the statute.”).

The majority concludes that the Government Employee

Rights Act of 1991 (GERA), Pub. L. 102-166, title III, 105

Stat. 1071, 1088, meets this “stringent” clear-statement rule.

Dellmuth, 491 U.S. at 228. I disagree. In my view, a careful

analysis of GERA reveals that the standard laid out in Dell-

muth and Atascadero, and applied by the Court many times

since, has not been met. GERA does not explicitly abrogate

state sovereign immunity; it does not specify states as poten-

tial defendants; and it does not create a statutory scheme

under which states are the only possible defendants. There-

fore, I respectfully dissent.

I

Atascadero and Dellmuth considered, respectively, whether

the Rehabilitation Act and the Education of the Handicapped

Act abrogated state sovereign immunity. Both acts naturally

and logically included states as potential defendants. But the

Supreme Court concluded that, in both statutes, Congress did

not sufficiently express its intent to subject the states to liabil-

ity.

5090 STATE OF ALASKA v. EEOC

A

In Atascadero, a case from our circuit, a graduate student

sued a California state hospital for discriminating against him

in violation of the conditions imposed by the Rehabilitation

Act. We held that Congress adequately expressed its intent to

abrogate state sovereign immunity because the Rehabilitation

Act authorized suits against recipients of federal assistance,

and because the “Act contains extensive provisions under

which states are the express intended recipients of federal

assistance.” Scanlon v. Atascadero State Hosp., 735 F.2d 359,

360 (9th Cir. 1984). Specifically, we noted that “Section 794

of the Rehabilitation Act broadly bars ‘discrimination under

any program or activity receiving federal financial assis-

tance,’ ” and that “§ 794a(a)(2) provides remedies, proce-

dures, and rights against ‘any recipient of Federal

assistance.’ ” Id. We reasoned that, “[i]f states receive federal

assistance under the statute, they plainly fall within the

defined class of potential defendants.” Id. We therefore con-

cluded that we could logically infer a congressional intent to

abrogate state sovereign immunity from the Rehabilitation

Act’s authorization of suit against a class of defendants that

necessarily included states. Id.

The Supreme Court reversed our decision:

The statute thus provides remedies for violations of

§ 504 by “any recipient of Federal assistance.” There

is no claim here that the State of California is not a

recipient of federal aid under the statute. But given

their constitutional role, the States are not like any

other class of recipients of federal aid. A general

authorization for suit in federal court is not the kind

of unequivocal statutory language sufficient to abro-

gate the Eleventh Amendment. When Congress

chooses to subject the States to federal jurisdiction,

it must do so specifically.

STATE OF ALASKA v. EEOC 5091

473 U.S. at 245-46 (citations omitted). Thus despite the fact

that the Rehabilitation Act logically included states within its

universe of potential defendants, and despite the states’ com-

mon role as “recipient[s] of Federal assistance,” the Court

held “that the Rehabilitation Act does not abrogate the Elev-

enth Amendment bar to suits against the States.” Id.

Similarly, in Dellmuth, the parent of a child with a learning

disability brought an action against the child’s school district

and Pennsylvania’s secretary of education under the Educa-

tion of the Handicapped Act (later renamed the Individuals

with Disabilities Education Act, see P.L. 101-476, 104 Stat.

1103, 1141-42 (1990)). See 491 U.S. at 225. The Third Cir-

cuit held that “the text of EHA and its legislative history leave

no doubt that Congress intended to abrogate the 11th amend-

ment immunity of the states.” Id. at 227 (quoting Muth v.

Central Bucks Sch. Dist., 839 F.2d 113, 128 (3d Cir. 1988)).

According to the Third Circuit, “[b]ecause the EHA and its

legislative history reflect the ‘most basic of political knowl-

edge that free public education is provided by and under the

aegis of the states,’ . . . Congress clearly contemplated litiga-

tion under the Act against a state in the federal courts.” Muth

v. Central Bucks Sch. Dist., 839 F.2d 113, 129 (3d Cir. 1988)

(quoting David D. v. Dartmouth Sch. Comm., 775 F.2d 411,

422 (1st Cir. 1985)).

Again, the Supreme Court reversed. The Court summarily

rejected two “nontextual arguments” for abrogation: first,

“that abrogation is ‘necessary to achieve the EHA’s goals,’ ”

and second, that Congress had amended the Rehabilitation

Act after Atascadero to expressly abrogate state sovereign

immunity. 491 U.S. at 228-29. The Court deemed both these

arguments “beside the point” and pointedly discouraged argu-

ments based on legislative history. Id. at 230 (“Legislative

history generally will be irrelevant to a judicial inquiry into

whether Congress intended to abrogate the Eleventh Amend-

ment. If Congress’ intention is ‘unmistakably clear in the lan-

guage of the statute,’ recourse to legislative history will be

5092 STATE OF ALASKA v. EEOC

unnecessary; if Congress’ intention is not unmistakably clear,

recourse to legislative history will be futile, because by defini-

tion the rule of Atascadero will not be met.” (quoting Atas-

cadero, 473 U.S. at 242)).

With respect to the statutory language of the Education of

the Handicapped Act (the “proper focus of an inquiry into

congressional abrogation of sovereign immunity”), the Court

held that none of the provisions on which the Third Circuit

relied met Atascadero’s clear-statement requirement. Dell-

muth, 491 U.S. at 231. The Third Circuit had focused on the

Act’s findings, in which Congress stated, “it is in the national

interest that the Federal government assist State and local

efforts to provide programs to meet the education needs of

handicapped children in order to assure equal protection of

the law.” Muth, 839 F.2d at 128 (quoting 20 U.S.C.

§ 1415(e)(2)) (alteration in original). The Court dismissed this

reasoning: “the general statement of legislative purpose in the

Act’s preamble simply has nothing to do with the States’ sov-

ereign immunity.” 491 U.S. at 231.

The Third Circuit also relied heavily on the Education of

the Handicapped Act’s judicial review provision, which

allowed parties aggrieved by the administrative process to

“bring a civil action . . . in any State court of competent juris-

diction or in a district court of the United States without

regard to the amount in controversy.” 839 F.2d at 129 (quot-

ing). The Court rejected this analysis as well, reiterating its

statement in Atascadero that “[a] general authorization for

suit in federal court is not the kind of unequivocal statutory

language sufficient to abrogate the Eleventh Amendment.”

491 U.S. at 231 (quoting Atascadero, 473 U.S. at 246).

The Court recognized that “the EHA’s frequent reference

to the States, and its delineation of the States’ important role

in securing an appropriate education for handicapped chil-

dren, make the States, along with local agencies, logical

defendants in suits alleging violations of the EHA.” Id. at 232.

STATE OF ALASKA v. EEOC 5093

Despite this recognition that the Act’s “statutory structure

lends force to the inference that the States were intended to

be subject to damages actions for violations of the EHA,” the

Court held that “such a permissible inference, whatever its

logical force, would remain just that: a permissible inference.

It would not be the unequivocal declaration which, we reaf-

firm today, is necessary before we will determine that Con-

gress intended to exercise its powers of abrogation.” Id. at

232. Accordingly, the Court held that “the statutory language

of the EHA does not evince an unmistakably clear intention

to abrogate the States’ constitutionally secured immunity

from suit.” Id. at 232.

This clear-statement rule has been criticized for being

exceptionally demanding. See, e.g., Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 75 (1989) (Brennan, J., dissenting)

(“Where the Eleventh Amendment applies, the Court has

devised a clear-statement principle more robust than its

requirement of clarity in any other situation. Indeed, just

today, the Court has intimated that this clear-statement princi-

ple is not simply a means of discerning congressional intent.”

(citing Dellmuth, 491 U.S. at 232)). But it is binding prece-

dent: under Atascadero and Dellmuth, abrogation by inference

is not enough.

B

Although the Atascadero-Dellmuth bar is extraordinarily

high, it is not insurmountable. Applying these two decisions,

the Court has held that Congress can sufficiently express its

intent to abrogate state sovereign immunity in one of three

ways:

First, Congress may explicitly provide that it intends to

abrogate state sovereign (or Eleventh Amendment) immunity.

See, e.g., United States v. Georgia, 546 U.S. 151, 153 (2006)

(quoting the Americans With Disabilities Act, 42 U.S.C.

§ 12131 et seq., which “provides that ‘a State shall not be

5094 STATE OF ALASKA v. EEOC

immune under the eleventh amendment to the Constitution of

the United States from an action in a Federal or State court of

competent jurisdiction for a violation of this chapter’ ” (inter-

nal alterations omitted)); Fla. Prepaid Postsecondary Educ.

Expense Bd. v. College Sav. Bank, 527 U.S. 627, 635 (1999)

(quoting the Patent Remedy Act, 35 U.S.C. § 296(a), which

provides that “[a]ny State . . . shall not be immune, under the

eleventh amendment of the Constitution of the United States

or under any other doctrine of sovereign immunity, from suit

in Federal court . . . for infringement of a patent” (alteration

in original)).

Second, Congress may specifically define states as poten-

tial defendants. See, e.g., Nev. Dep’t of Human Res. v. Hibbs,

538 U.S. 721, 726 (2003) (finding an intent to abrogate state

sovereign immunity in the Family and Medical Leave Act, 29

U.S.C. § 2617, where the act expressly allowed a suit against

a “public agency,” defined “to include both ‘the government

of a State or political subdivision thereof’ and ‘any agency of

. . . a State, or a political subdivision of a State’ ” (quoting 29

U.S.C. §§ 203(x), 2611(4)(A)(iii)) (alterations in original));

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (finding

an intent to abrogate state sovereign immunity in the Age Dis-

crimination in Employment Act (ADEA) because it incorpo-

rated by reference a provision in the Fair Labor Standards Act

(FLSA) that allowed suit against a “public agency,” which in

turn was defined by the FLSA to include “the government of

a State”).

Third, Congress may create a statutory scheme under which

states are the only possible defendants. In Seminole Tribe of

Fla. v. Florida, the Court held that the Indian Gaming Regu-

latory Act (IGRA) expressed a congressional intent to abro-

gate state sovereign immunity, although the Court also held

that purported abrogation invalid. 517 U.S. 44, 57, 72 (1996).

The Court explained that it agreed with the Eleventh Circuit’s

holding below (as well as with the parties “and with virtually

every other court that has confronted the question”) that

STATE OF ALASKA v. EEOC 5095

IGRA provided an “unmistakably clear” statement of its

intent to abrogate state sovereign immunity. 517 U.S. at 56

(quoting Dellmuth, 491 U.S. at 228). The Court noted that

IGRA imposed duties on “a State” to negotiate in good faith

with Indian Tribes, and created a complex remedial scheme

imposing various liabilities on “the State” that shirked its

responsibilities under IGRA. Id. at 56-57. The Court con-

cluded that IGRA’s provisions “refer to ‘the State’ in a con-

text that makes it clear that the State is the defendant to the

suit brought by an Indian tribe,” id. at 57, observing that

IGRA’s detailed remedial provisions scheme “repeatedly

refers exclusively to ‘the State.’ ” Id. at 75 n.17 (explaining

why IGRA’s remedial scheme implicitly precluded prospec-

tive injunctive relief under Ex Parte Young). Thus the Court,

like the Eleventh Circuit in the decision below, concluded that

the Atascadero-Dellmuth clear-statement rule was satisfied

where Congress had created a statutory scheme that would

have no effect at all if states were not potential defendants.

See Seminole Tribe v. Florida, 11 F.3d 1016, 1024 (11th Cir.

1994) (“The only possible defendant to such a suit [under

IGRA] is a state. Thus, unless Congress intended to abrogate

the states’ immunity, this portion of IGRA would be of no

effect.”).

In none of these cases, however, has the Court backed away

from its holding in Atascadero and Dellmuth that nothing

short of an unambiguous and textual statement will suffice.

See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (fol-

lowing Atascadero and holding that general statutory lan-

guage prohibiting mandatory retirement did not subject states

to liability).

II

GERA does not meet the stringent standard set by Atas-

cadero and Dellmuth. GERA contains no express statement of

congressional intent to abrogate state sovereign immunity,

and it does not specifically define the states as defendants.

5096 STATE OF ALASKA v. EEOC

Indeed, GERA contains no express definition of the individu-

als and entities subject to claims under its provisions. The two

relevant GERA provisions in effect when Ward and Jones

brought their claims in 1994 simply defined what types of dis-

criminatory conduct were prohibited1 and which government

employees could bring claims.2 Nor did GERA’s remedies

1

Section 302, 105 Stat. at 1088, codified at 2 U.S.C. § 1202 (1994),

established the right of employees of the Senate to be free from specified

forms of discrimination:

All personnel actions affecting employees of the Senate shall be

made free from any discrimination based on—

(1) race, color, religion, sex, or national origin, within the

meaning of section 717 of the Civil Rights Act of 1964 (42

U.S.C. 2000e-16);

(2) age, within the meaning of section 15 of the Age Dis-

crimination in Employment Act of 1967 (29 U.S.C. 633a); or

(3) handicap or disability, within the meaning of section 501

of the Rehabilitation Act of 1973 (29 U.S.C. 791) and sec-

tions 102-104 of the Americans with Disabilities Act of 1990

(42 U.S.C. 12112-14).

2

Section 321(a) of GERA, 105 Stat. at 1097-98, codified at 2 U.S.C.

§ 1220(a) (1994), defined the employees who were entitled to the protec-

tions of Section 302 of GERA to include state and local political appoin-

tees:

The rights, protections, and remedies provided pursuant to sec-

tion 302 [establishing the right of Senate employees to be free

from specified discrimination] and 307(h) [establishing the reme-

dies for violation of that right] of this title shall apply with

respect to employment of any individual chosen or appointed, by

a person elected to public office in any State or political subdivi-

sion of any State by the qualified voters thereof—

(1) to be a member of the elected official’s personal staff;

(2) to serve the elected official on the policymaking level;

(3) to serve the elected official as an immediate advisor with

respect to the exercise of the constitutional or legal powers

of the office.

Section 321 was later redesignated as Section 304 by the “Congressional

Accountability Act of 1995,” Pub. L. 104-1 § 405, 109 Stat. 3, 41.

STATE OF ALASKA v. EEOC 5097

provision, Section 307(h),3 incorporate by reference any other

provision of law expressly and unequivocally abrogating state

sovereign immunity, as was the case in Kimel.

A

The majority cites GERA’s cross-reference to Title VII’s

back-pay remedy and concludes, based on Title VII’s use of

the word “employer,” that this cross-reference satisfies the

Atascadero-Dellmuth clear-statement rule. Maj. Op. at 5069

(“GERA’s provisions, entitling state employees to ‘back pay

. . . payable by the employer,’ 42 U.S.C. §§ 2000e-5(g)(1),

2000e-16c, unmistakably express Congress’s intent to allow

suits against states for damages.” (alterations in original)).

Citing Kimel, the majority states that “GERA is cut from the

same cloth as the ADEA,” id. at 5069, suggesting that GERA

3

Section 307(h) of GERA, 105 Stat. at 1092, codified at 2 U.S.C.

§ 1207(h) (1994), set forth the following remedies for a violation of

GERA:

If the hearing board determines that a violation has occurred,

it shall order such remedies as would be appropriate if awarded

under section 706 (g) and (k) of the Civil Rights Act of 1964 (42

U.S.C. 2000e-5 (g) and (k)), and may also order the award of

such compensatory damages as would be appropriate if awarded

under section 1977 and section 1977A (a) and (b)(2) of the

Revised Statutes (42 U.S.C. 1981 and 1981A (a) and (b)(2)). In

the case of a determination that a violation based on age has

occurred, the hearing board shall order such remedies as would

be appropriate if awarded under section 15(c) of the Age Dis-

crimination in Employment Act of 1967 (29 U.S.C. 633a(c)).

Any order requiring the payment of money must be approved by

a Senate resolution reported by the Committee on Rules and

Administration. The hearing board shall have no authority to

award punitive damages.

The remedies in Section 307(h) were amended and moved to Section

302(b) in 1995. See Pub. L. 104-1 § 504, 109 Stat. 3, 40-41. They are cur-

rently codified at 42 U.S.C. § 2000e-16b(b).

5098 STATE OF ALASKA v. EEOC

incorporates Title VII’s definition of states as defendants in

the same way that the ADEA incorporates the FLSA’s.4

This analogy does not survive close examination. As Kimel

explained, the ADEA incorporates various rights of action

under the FLSA: the ADEA, 29 U.S.C. § 626(b), states that

“[t]he provisions of this chapter shall be enforced in accor-

dance with the powers, remedies, and procedures provided in”

section 216(b) of the FLSA, 29 U.S.C. § 216(b). This cross-

referenced provision, section 216(b) of the FLSA, provides

that an “action to recover” back pay “may be maintained

against any employer (including a public agency) in any Fed-

eral or State court of competent jurisdiction by any one or

more employees for and in behalf of himself or themselves

and other employees similarly situated.” 29 U.S.C. § 216(b).

The FLSA defines “public agency” as including, among other

things, “the government of a State.” 29 U.S.C. § 203(x).

Because the ADEA incorporated the FLSA’s enforcement

provision, which provides parties a right of action against

states, the Court concluded that the ADEA sufficiently

expressed an intent to abrogate state sovereign immunity. See

Kimel, 528 U.S. at 73-74.

GERA, by contrast, does not incorporate the provisions of

Title VII that authorize plaintiffs to maintain civil actions, 42

U.S.C. §§ 2000e-5(f), 2000e-16(c). Nor does GERA incorpo-

4

Title VII does not actually contain any provision that specifically pro-

vides for suit against states, but in a pre-Atascadero case the Supreme

Court held, based on a passing reference to legislative history, that Title

VII’s definition of possible defendants expressed a congressional intent to

abrogate state sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445,

453 n.9 (1976). Although inconsistent with Dellmuth, 491 U.S. at 230, this

holding is nonetheless controlling with respect to Title VII. See Agostini

v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of overruling its

own decisions.”).

STATE OF ALASKA v. EEOC 5099

rate Title VII’s definition of “person[s]” subject to suit, 42

U.S.C. § 2000e(a). GERA merely provides that the remedies

available to GERA claimants may include “such remedies as

would be appropriate if awarded under section 706(g) and (k)

of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g) and

(k)).” 105 Stat. at 1091 (currently codified at 42 U.S.C.

§ 2000e-16b(b)). By making available such remedies “as

would be appropriate,” GERA indicates that Title VII’s reme-

dies are incorporated into GERA mutatis mutandis, i.e., with

“all necessary changes having been made.” Shalala v. Ill.

Council on Long Term Care, Inc., 529 U.S. 1, 17 (2000)

(addressing a statutory scheme in which the Medicare Act

provided for judicial review “to the same extent as is provided

in” the Social Security Act). This is confirmed by the wording

of section 706(g), the incorporated Title VII provision on

which the majority relies. Section 706(g) states that in an

EEOC civil enforcement action a “court may . . . order such

affirmative action as may be appropriate,” including “rein-

statement or hiring of employees, with or without back pay

(payable by the employer, employment agency, or labor orga-

nization, as the case may be, responsible for the unlawful

employment practice), or any other equitable relief as the

court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1). The

natural reading of GERA’s statement that claimants have

“such remedies as would be appropriate if awarded under sec-

tion 706(g)” is that a court may award GERA claimants back

pay, reinstatement, or other equitable remedies described in

§ 706(g) against appropriate GERA defendants. Section

706(g) deals with the types of remedies available, not with

who can be sued. Reading GERA as allowing actions against

any entity mentioned in § 706(g) would lead to the incongru-

ous conclusion that GERA authorizes suits against employ-

ment agencies and labor organizations.

Because GERA does not expressly incorporate a cause of

action against the states, but merely makes Title VII’s reme-

dies available for claims otherwise authorized under its provi-

sions, GERA’s cross-reference to Title VII does not provide

5100 STATE OF ALASKA v. EEOC

a basis for concluding that it unmistakably abrogates state

sovereign immunity.

B

Nor can the majority rely on the fact that some of the

employees covered by GERA are employed by states. Cf.

Maj. Op. at 5068 (“GERA expressly covers state employees,

and expressly gives them a right to collect damages ‘payable

by the employer’—the state.” (emphasis in original)). As the

majority acknowledges, a “general authorization for suit in

federal court” is an insufficient expression of congressional

intent to abrogate state sovereign immunity, even if the states

are logically included within the definition of persons and

entities subject to suit. Atascadero, 473 U.S. at 245-46 (“The

statute thus provides remedies for violations of § 504 by ‘any

recipient of Federal assistance.’ There is no claim here that

the State of California is not a recipient of federal aid under

the statute.”).

By the same token, the fact that state employees are within

the universe of potential GERA claimants is insufficient. As

explained above, GERA would have to define its potential

claimants in such a way as to make states the only possible

defendants before we could properly find an “unmistakably

clear” intent to abrogate state sovereign immunity. Seminole

Tribe, 517 U.S. at 56 (quoting Dellmuth, 491 U.S. at 228).

But unlike IGRA, the act at issue in Seminole Tribe, GERA

does not create a remedial scheme under which states are the

only potential defendants. It does not expressly impose any

duties or responsibilities on states. In fact, GERA’s lone refer-

ence to “state employees” appears in the heading of Section

321, 105 Stat. at 1097, the text of which refers broadly to

appointees of elected officials of “any State or political subdi-

vision thereof” (emphasis added).5 See Intel Corp. v.

5

Section 302 of GERA was amended in 1995, after Ward and Jones

brought their claims, to refer to the state employees referred to in Section

321 (redesignated Section 304). See Pub. L. 104-1, 109 Stat. at 40. Neither

the majority nor the parties suggest that we should place any weight on

amendments made to GERA after Ward and Jones brought their claims.

STATE OF ALASKA v. EEOC 5101

Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004)

(holding that a statute’s caption “cannot undo or limit that

which the statute’s text makes plain”) (quoting Trainmen v.

Balt. & Ohio R.R. Co., 331 U.S. 519, 529 (1947) (alteration

omitted)).

The plain language of GERA allows claims to be brought

against a variety of non-state defendants not shielded by sov-

ereign immunity. Most important, state officials are subject to

suit under GERA. GERA allows an aggrieved employee to

bring a claim for prospective injunctive relief, see GERA

§ 307(h), codified at 2 U.S.C. § 1207(h) (1994) (incorporating

the injunctive relief remedies set forth in 42 U.S.C. § 2000e-

5 and 29 U.S.C. § 633a), and sovereign immunity poses no

bar to a GERA action against a state official so long as the

complaint “alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Verizon

Md., Inc. v. Pub. Serv. Comm. of Md., 535 U.S. 635, 645

(2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521

U.S. 261, 296 (1997) (O’Connor, J., concurring)); see also

Missouri v. Jenkins, 491 U.S. 274, 290 (1989). Nothing in the

text of GERA prevents a public employee from bringing an

action against a state official in that official’s individual

capacity for violating GERA’s non-discrimination require-

ment. Cf. Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033,

1038 (9th Cir. 2006) (holding that Title VII’s definition of

“employer” excludes individuals); Miller v. Maxwell’s Int’l,

Inc., 991 F.2d 583, 587 (9th Cir. 1993).

Moreover, because GERA covers appointees of elected

officials of a “political subdivision of any State,” § 321(a),

GERA claimants may also bring actions against political sub-

divisions of states, such as counties and municipalities, that

are not shielded by sovereign immunity. See Northern Ins.

Co. v. Chatham County, 547 U.S. 189, 193 (2006). The Tenth

and Fifth Circuits have both held that GERA allows claims

against counties. See Fremont County v. EEOC, 405 F.3d 840

(10th Cir. 2005); Brazoria County v. EEOC, 391 F.3d 685

5102 STATE OF ALASKA v. EEOC

(5th Cir. 2004). And we have construed the phrase “political

subdivision of any State” in Title VII and the ADEA to

include counties and cities. See Ramirez v. San Mateo County

Dist. Attorney’s Office, 639 F.2d 509 (9th Cir. 1981); see also

Monce v. City of San Diego, 895 F.2d 560 (9th Cir. 1990).

C

In sum, GERA does not unequivocally and textually abro-

gate state sovereign immunity. It does not (1) expressly

invoke Congress’s intent to do so, (2) specifically define

states as defendants, or (3) make states the only possible

defendants. Rather, the GERA provisions at issue in this case

are indistinguishable from the EHA (now IDEA) provisions

in Dellmuth, where the act allowed suit against recipients of

federal education grants who failed to provide a “free appro-

priate public education” to schoolchildren. Muth, 839 F.2d at

116. Notwithstanding the “most basic of political knowledge

that free public education is provided by and under the aegis

of the states,” id. at 129, the Court held that Congress had not

provided an “unequivocal and textual” expression of intent to

abrogate state sovereign immunity. Dellmuth, 491 U.S. at

230.

III

The parties raise an additional argument as to why GERA

abrogates state sovereign immunity. As noted above, the

Supreme Court held in Fitzpatrick that Congress sufficiently

expressed its intent to abrogate state sovereign immunity in

Title VII of the Civil Rights Act of 1964, as amended. See

427 U.S. at 453 n.9. While the majority bases its abrogation

analysis on GERA’s cross-reference to Title VII’s back-pay

provision, Ward and EEOC argue, somewhat opaquely, that

GERA is either part of Title VII or sufficiently similar to Title

VII that we are bound by Fitzpatrick.

STATE OF ALASKA v. EEOC 5103

In light of Atascadero and Dellmuth, this argument is

untenable. The proposition that GERA abrogates state sover-

eign immunity because its substantive prohibitions or policy

goals are similar to those of Title VII is nothing if not an

inference, and we cannot conclude Congress intended to abro-

gate state sovereign immunity unless it expressed that intent

in the clearest terms. Nonetheless, Fitzpatrick remains bind-

ing precedent on the narrow issue it decided: that Title VII

expresses a congressional intent to abrogate state sovereign

immunity. See Agostini, 521 U.S. at 237. Although neither

Ward nor the EEOC went so far in their briefs as to argue that

GERA is actually part of Title VII, Ward’s counsel indicated

that he agreed with this position at oral argument.6

A review of the history of Title VII and GERA, however,

makes clear that GERA is not, and never has been, a part of

Title VII. Indeed, when Ward and Jones brought their claims

in 1994, the two statutes were not even in the same title of the

United States Code.

Title VII of the Civil Rights Act of 1964 prohibited

employment discrimination based on race, color, religion, sex,

6

Ward’s brief notably stops short of claiming that Title III of the Civil

Rights Act of 1991 (i.e., GERA) constitutes an amendment to Title VII of

the Civil Rights Act of 1964, although when responding to our questioning

Ward’s counsel seemed willing to accept this position:

Q: I just want to make clear what your position is on this.

A: Right. I mean, Your Honor, I would not suggest that it’s not

part of Title VII. It’s certainly an amendment to Title VII, codi-

fied as part of Title VII . . . . Yes, this definitely amends and adds

to [Title VII]; it carries with it the same principles as Title VII.

It adds a new basis of liability, and so in interpreting that new

basis of liability—

Q: Why are you having trouble saying ‘Yes, this is Title VII’?

. . . . You’re using double negatives and beating around the bush.

Is it your position that GERA is Title VII?

A: Yes, GERA is part of Title VII, absolutely.

5104 STATE OF ALASKA v. EEOC

and national origin, but it did not extend its protection to state

employees. Fitzpatrick, 427 U.S. at 449. In 1972, after exten-

sive hearings, Congress amended Title VII’s definition of a

“person” subject to suit to include “governments, governmen-

tal agencies, [and] political subdivisions,” but also amended

Title VII’s definition of “employee” to exclude political

appointees as potential plaintiffs. Pub. L. 92-261 § 2(1), (5),

86 Stat. 103, codified at 42 U.S.C. § 2000e(a), (f). The net

effect of these amendments was to allow all public employ-

ees, except for elected officers and their political appointees,

to sue governmental entities for employment discrimination

under Title VII.

Two decades later, Congress enacted the Civil Rights Act

of 1991, Pub. L. 102-166, 105 Stat. 1071. Title I of the Act,

entitled “Federal Civil Rights Remedies,” amended various

provisions of federal law, including Title VII and 42 U.S.C.

§§ 1981 and 1988. Title III of the act, entitled the “Govern-

ment Employee Rights Act of 1991” (GERA), created a new,

self-contained act to “provide procedures to protect the right

of Senate and other government employees,” § 301(b), which

was subsequently codified as part of Title 2 of the United

States Code (statutes relating to Congress). Nothing in Title

III (GERA) amended the Civil Rights Act of 1964. Congress

could have easily extended Title VII to state and local politi-

cal employees by amending Title VII to eliminate the exclu-

sion of political appointees from the definition of “person”

subject to protection from discrimination. See 42 U.S.C.

§ 2000e(f). Congress knew how to amend Title VII, and did

so in Title I of the Civil Rights Act of 1991, see 105 Stat.

1074 (expressly amending Title VII). But Congress chose not

to do so in GERA. Accordingly, Fitzpatrick does not control

our abrogation analysis.

IV

Atascadero and Dellmuth instruct us that we cannot infer a

congressional intent to abrogate state sovereign immunity

STATE OF ALASKA v. EEOC 5105

simply because the states are logically included within the set

of potential defendants. GERA does not expressly abrogate

state sovereign immunity, either directly or by reference. Nor

does GERA limit its universe of possible defendants to the

states alone. Because the text of GERA does not meet the

high threshold set by the Supreme Court’s clear-statement

rule in Atascadero and Dellmuth, I would hold Jones’s and

Ward’s claims against Alaska barred by sovereign immunity

and grant Alaska’s petition for review. Therefore, I must

respectfully dissent.