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

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOANNE B. MIGNEAULT,

Plaintiff-Appellee,

v.

RICHARD PECK, President; DAVID L. McKINNEY, Vice President for Business and Finance; PAUL ROTH, M.D., Dean of the School of Medicine; ROMEO ORTIZ, Director of Human Resources,

Defendants,

and

UNIVERSITY OF NEW MEXICO; JANE E. HENNEY, M.D., Vice President for Health Sciences,

Defendants-Appellants,

-------------------

UNITED STATES OF AMERICA,

Intervenor,

AMERICAN ASSOCIATION OF RETIRED PERSONS,

Amicus Curiae.

No. 97-2099

OPINION ON REMAND

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.