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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Office of the Clerk
Byron White United States Courthouse
Denver, Colorado 80257
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk of Court Chief Deputy Clerk
February 25, 2000
TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RE: No. 97-2099; Migneault v. Peck, et al.
D.C. No. CIV-96-385-JC
The court's Opinion on Remand was filed and judgment entered today in the captioned case. A copy of the opinion is enclosed.
This court issued a written, signed opinion on October 23, 1998. A petition for writ of certiorari was filed in the Supreme Court on January 27, 1999. The Supreme Court opinion, which was filed January 18, 2000, ordered judgment vacated with costs and remanded for further consideration.
The Opinion on Remand directs the mandate to issue forthwith. The district court shall acknowledge receipt of this mandate by file stamping and returning the enclosed copy of this letter. Any original record will be returned to you at a later date.
Sincerely,
Patrick J. Fisher, Jr.
Clerk of Court
By:
Nicole Allison
Deputy Clerk
Enclosure
UNITED STATES OF AMERICA,
Intervenor,
AMERICAN ASSOCIATION OF RETIRED PERSONS,
Amicus Curiae.
JOANNE B. MIGNEAULT,
Donna L. Dagnall, Albuquerque, New Mexico, for Plaintiff-Appellee.
Paula I. Forney of Law Offices, Santa Fe, New Mexico, for Defendants-Appellants.
Seth M. Galanter (Jessica Dunsay Silver with him on the brief), Department of Justice, Washington, D.C., for the Intervenor.
Cathy Ventrell-Monsees and Laurie A. McCann of American Association of Retired Persons, Washington, D.C., on the brief for Amicus Curiae.
Before BRORBY, McKAY, and PORFILIO,
Circuit Judges.
BRORBY, Circuit Judge.
In Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998), we
concluded
the district court correctly denied Eleventh Amendment immunity to the
University of New Mexico ("University") against Ms. Migneault's Age
Discrimination in Employment Act ("ADEA") claim. In so holding, we followed
Tenth Circuit precedent established in Hurd v. Pittsburg State University, 109
F.3d 1540, 1546 (10th Cir. 1997), that "Congress validly abrogated Eleventh
Amendment immunity by exercising its authority under the Fourteenth
Amendment to enact the ADEA and by indicating its intent to abrogate."
Migneault, 158 F.3d at 1136. Although we acknowledged a split in the circuits on
the issue of whether the Supreme Court's decision in City of Boerne v. Flores,
521 U.S. 507 (1997) superseded our holding in Hurd, we joined the majority of
other circuits that had addressed the issue and held that City of Boerne did not
alter our prior decision "that Congress acted within its authority under the
Fourteenth Amendment to abrogate Eleventh Amendment immunity from suits
under the ADEA." Migneault, 158 F.3d at 1139. The Supreme Court, in a
plurality opinion, has now resolved the split in the circuits, holding that while
"the ADEA does contain a clear statement of Congress' intent to abrogate the
States' immunity, ... the abrogation exceeded Congress' authority under § 5 of the
Fourteenth Amendment." Kimel v. Florida Board of Regents, 528 U.S. ___, ___,
120 S. Ct. 631, 634 (2000). Accordingly, the Supreme Court vacated our decision
in Migneault, University of New Mexico Bd. of Regents v. Migneault,
___ U.S.
___, 2000 WL 29245 (Jan. 18, 2000), and remanded for further consideration in
light of Kimel.
Having carefully considered Ms. Migneault's ADEA claim in light of Kimel v. Florida Board of Regents,(1)
we conclude she cannot maintain her suit against the University, a state employer. We therefore REVERSE the district court's denial of Eleventh Amendment immunity to the University and remand for further proceedings consistent with the opinion of the United States Supreme Court.
The mandate shall issue forthwith.
1. We note Kimel involved only the issue of whether Congress validly abrogated the States' Eleventh Amendment immunity under the ADEA. It did not address that portion of our Migneault opinion dealing with Ms. Migneault's 42 U.S.C. § 1983 claim against Dr. Jane Henney. Accordingly, we reaffirm our holding that Ms. Migneault does not have a cognizable age discrimination claim under the Equal Protection Clause, independent of the ADEA.
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