Carol A. Timmer v. Michigan Department of Commerce and Michigan Department of Civil Service, United States of America, Intervenor

BOGGS, Circuit Judge,

concurring in part and dissenting in part.

In my view, the federal courts do not have jurisdiction of Equal Pay Act claims against a state. Therefore, I must dissent from the court’s holding to the contrary. However, given that the court believes that we do have jurisdiction in this case, I concur in the holding that the district court was correct in granting summary judgment to the defendant on the merits of the issues involved.

In Seminole Tribe v. Florida, — U.S. —, 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996), the Supreme Court clearly held that states could not be called into federal court against their -will under legislation passed pursuant to the Commerce Clause. While the Court noted that the question of the power of Congress to pass similar legislation under § 5 of the Fourteenth Amendment was not raised before it, it certainly did not endorse this court’s view today that it was free to scour the Constitution looking for sources of power that Congress never invoked. Indeed, it seems to me that our examination of the sources of power for the statute directly contradicts the holding of Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 , 101 S.Ct. 1531 , 67 L.Ed.2d 694 (1981). That case held that “we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment. Our previous cases are wholly consistent with that view, since Congress in those cases expressly articulated its intent to legislate pursuant to § 5.” Id. at 16, 101 S.Ct. at 1539 . Although three justices dissented on the merits of the case, the dissent specifically stated: “I agree that [this Act] was enacted pursuant to Congress’ spending power and not pursuant to its power under § 5 of the Fourteenth Amendment. ... Congressional action under the Enforcement Clause of the Fourteenth Amendment ... has very significant consequences, and ... it should not be lightly assumed that Congress acted pursuant to its power under § 5 in passing the Act.” 451 U.S. at 35 , 101 S.Ct. at 1549 (dissent) (citation omitted). Our court today holds directly to the contrary: not only can it be lightly assumed, it can always be assumed, that Congress acted under its Fourteenth Amendment power, if such action would be constitutional.

I have no quarrel with the court’s reliance on Fitzpatrick v. Bitzer, 427 U.S. 445 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976), for the proposition that Eleventh Amendment immunity can be abrogated where Congress acts under § 5 of the Fourteenth Amendment. This follows merely from the chronology and substance of these two amendments. The error in Pennsylvania v. Union Gas Co., 491 U.S. 1 , 109 S.Ct. 2273 , 105 L.Ed.2d 1 (1989) (plurality), now overruled by Seminole Tribe , was in rejecting the equally clear chronological implications of the fact that the Eleventh Amendment was ratified after the Commerce Clause. Let me even grant for the moment that the court is correct in relying on the dicta in footnote 18 of EEOC v. Wyoming, 460 U.S. 226 , 243-44 n. 18, 103 S.Ct. 1054 , 1064 n. 18, 75 L.Ed.2d 18 (1983), that Congress’s failure to cite the Fourteenth Amendment’s § 5 as the source of its power has no significance to the challenge we face in this case to our jurisdiction over an Equal Pay *846 Act claim against a state defendant. 1 Neither of these principles is sufficient to confer jurisdiction upon us in this case, however. Here, Congress expressly stated the constitutional power pursuant to which it sought to legislate. The court’s holding is apparently that this exclusive invocation of only one source of power was not only unnecessary, but completely irrelevant. Thus, in addition to relying on EEOC to reject any requirement of a clear statement for reliance on § 5 of the Fourteenth Amendment (contrary to Pennhurst), the court goes beyond that to reject even the sensible rule of following a contrary clear statement.

I could agree with such a holding if I believed that Congress never has any regard for the constitutional source of its power when it enacts legislation — that it simply seeks to exert its power without respecting any limits. If that were the case, then any such statement of the source of power would always be mere surplusage and a court would be free to rummage through the Constitution to find some clause that the court thinks might support the exercise of power. Such seems to have been the approach of a plurality of the Supreme Court in Fullilove v. Klutznick, 448 U.S. 448 , 100 S.Ct. 2758 , 65 L.Ed.2d 902 (1980), when it effectively noted in dicta that the affirmative action program at issue in that case “could” have been enacted pursuant to the Spending Clause, the Commerce Clause, § 5 of the Fourteenth Amendment, or an “amalgam” of all three. Such an approach has never been endorsed by any majority of the Supreme Court, however.

The court is not showing sufficient respect for a coordinate branch of government. Thus, this case involves not only the structural imperative of federalism, but the structural imperative of restraint in the exercise of constitutional power. The court exceeds the bounds of judicial restraint by not recognizing in the enactment of the Equal Pay Act an exercise of congressional restraint. Under Marbury v. Madison, 5 U.S. (1 Cranch) 137 , 2 L.Ed. 60 (1803), and Cooper v. Aaron, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 (1958), the power of the courts to interpret the Constitution is supreme, but it has never been exclusive. Our colleagues in the political branches, both the legislative and the executive, frequently make heartfelt decisions based on the Constitution. To do so, they are required to interpret the Constitution. We should not ignore these interpretations by other officers who take the same oath we do under Article VI. Indeed, we should respect them. It is not inconceivable that Congress might view a certain enactment as appropriate in pursuit of one constitutionally permitted end, but not with respect to others. While this does have the slightly anomalous result that Congress could make an unconstitutional law constitutional by choosing to exercise a different power, that still remains a choice to be made by Congress. By taking Congress at its word initially, however, we leave that constitutional choice to Congress in the first instance and not to the courts.

Moreover, I cannot agree that the rule set forth in Pennhurst, that a clear statement is required for Congress to use its Fourteenth Amendment power, was superseded by EEOC . First, as the Court itself admits, EEOC’s footnote 18 was mere dicta. Second, EEOC does not state that Pennhurst’s clear statement rule was entirely invalid, only that it applied to statutory construction, not to the issue of the limits of Congress’s powers. But that is exactly my point here. I do not propose holding that the Equal Pay Act’s grant of authority to federal courts to entertain suits against states under its provisions was unconstitutional under the Eleventh Amendment. I only propose holding that because Congress did not say, or even imply, 2 that it was acting pursuant to the *847 Fourteenth Amendment, and in fact noted that it was acting pursuant to. the Commerce Clause in the original FLSA, Seminole Tribe’s, holding that only § 5 of the Fourteenth Amendment can abrogate Eleventh Amendment immunity means that Congress did not (not “could not”) grant the federal courts jurisdiction over Equal Pay Act claims against a state. The virtue of my approach is precisely that I avoid construing constitutional provisions. Third, I note that none of the cases the Supreme Court cited to support its creation of the clear statement rule in Pennhurst involved statutory construction even though Pennhurst itself did. Therefore, I conclude that the dicta in EEOC does not persuasively limit Pennhurst.

Given the major changes wrought by the Supreme Court in Pennhurst and in Seminole Tribe , the holding in Marshall v. Owensboro-Daviess County is not only no longer binding on us, but is clearly overruled by those cases. I therefore dissent from the portion of the opinion that holds that we have subject matter jurisdiction to hear this case.

. Though, of course, this is contrary to Pennhurst and EEOC does not purport to overrule that case.

. The court correctly states, at footnote 6, the key portions of the legislative history of the 1974 extension of the FLSA to the states. As the court notes, the policy issue facing Congress was whether the states should be held to the same standards as private employers in their relation with their employees. The items debated were primarily the minimum wage and overtime provisions. Under these circumstances, I find it difficult to attribute to Congress any intent to treat the equal pay provisions separately from the rest of the FLSA and, with regard to those provisions only, to switch sources of power in *847 mid-stream, especially with regard to a provision that drew little or no separate attention.