State of Alaska v. Eeoc

concurring:

The dissent reads like a law review outline of relevant law but it makes an assumption I cannot accept. I therefore concur in Judge Noonan’s opinion.

*481 In 1972, Congress made findings showing widespread discrimination among state employees. The proposed legislation, however, was amended to exclude certain high level employees. What can we know based on this fact?

What we know is that there was a record of discrimination in state employment generally but that Congress voted not to extend the statute’s coverage to certain high level state employees.

What the dissent assumes is that this was done for purely political reasons based on only a few representatives’ concerns about state rights. It is true that two senators asserted this argument in support of the amendment. But that does not tell us the intent of hundreds of other lawmakers at the time of their votes.

This is the problem with basing assumptions on legislative history. As Justice Scalia has persuasively written:

Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 31-32 (Amy Gutmann ed., Princeton University Press 1997)(emphasis in original).

The upshot is that we have an amended…

The State of Alaska, Office of the Governor (the Governor’s Office) appeals the remand order of the United States Equal Employment Opportunity Commission (the EEOC) in a suit against the State of Alaska brought by two discharged members of the Governor’s Office. We hold that the suit is barred by the Eleventh Amendment and direct its dismissal.

FACTS AND PROCEEDINGS

In the election of November 1990, Governor Walter Hickel ran for reelection with Jack Coghill as his running mate for Lieutenant-Governor. Hickel and Coghill were elected. In a gesture to his ideologically-different running mate, Hickel appointed Margaret Ward (Ward) to be Director of the Office of the Governor in Anchorage and appointed Lydia Jones (Jones) to be one of his Special Staff Assistants in the same office. Both positions were exempt from civil service. Ward’s responsibilities as set out by her included supervision of “all operations of Governor’s Anchorage Regional Office, including personnel. Promote the goals and agenda of Governor Hickel and his administration.” Jones’ responsibilities, as set out in a staff description of the position, included response to the voluminous correspondence addressed to…

dissenting:

I would hold that Congress validly abrogated the States’ Eleventh Amendment immunity to private claims for damages under the Government Employee Rights Act (“GERA”), 42 U.S.C. § 2000e-16a to 16c. I therefore respectfully dissent. Because the majority decides the Eleventh Amendment inquiry on narrow grounds, and because I disagree with its holding, I proceed to address the two predicate inquiries of the immunity analysis: congressional intent and constitutional authority. I turn first to congressional intent.

I. Congressional Intent

To abrogate the States’ Eleventh Amendment immunity, Congress must “unequivocally express[ ] its intent to abrogate that immunity.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000). In my view, Congress unequivocally expressed such an intent in GERA.

As the Supreme Court explained in 1976 in Fitzpatrick v. Bitzer, Title VII of the Civil Rights Act of 1964 expressly excluded the States from its purview. 427 U.S. 445 , 448-49 & n. 2, 96 S.Ct. 2666 , 49 L.Ed.2d 614 . The 1972 amendments to Title VII, 2 however, “made clear that [Title VII] was being extended to persons aggrieved by public employers.”…

FACTS AND PROCEEDINGS

In the election of November 1990, Governor Walter Hickel ran for reelection with Jack Coghill as his running mate for Lieutenant-Governor. Hickel and Coghill were elected. In a gesture to his ideologically-different running mate, Hickel appointed Margaret Ward (Ward) to be Director of the Office of the Governor in Anchorage and appointed Lydia Jones (Jones) to be one of his Special Staff Assistants in the same office. Both positions were exempt from civil service. Ward’s responsibilities as set out by her included supervision of “all operations of Governor’s Anchorage Regional Office, includ- ing personnel. Promote the goals and agenda of Governor Hickel and his administration.” Jones’ responsibilities, as set out in a staff description of the position, included response to the voluminous correspondence addressed to the governor and the handling of 350 to 450 telephone calls per day. The Spe- cial Assistants were expected to give “a friendly ear or help- ing hand for a constituent” and to be advocates of the governor’s programs in the legislature or with the public. The job description concluded: “It is a position of political sensi- tivity demanding…