5th Cir.: FMLA immunity remains, but reinstatement OK

The Fifth Circuit held that a states retain immunity under the “self care” provision of the Family and Medical Leave Act (FMLA), but a claim for reinstatement falls under the Ex Parte Young exception to immunity. Nelson v. Univ. of Texas at Dallas et al., --- F.3d ----, 2008 WL 2689116 (5th Cir. Jul. 10, 2008) (No. 07-10660).

 

          The University approved Nelson for 4-6 weeks of leave following a car accident, but terminated him for absenteeism prior to the 12 weeks required by FMLA. See 29 U.S.C. § 2612(a)(1)(D). The circuit held in Kazmier v. Widmann, 225 F.3d 519 (5th Cir.2000), that FMLA did not validly abrogate states’ immunity. Although Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) subsequently held that the family care provision of the FMLA, § 2612(a)(1)(C), validly abrogated immunity, the court agreed with the Sixth, Tenth and Tenth Circuits that Hibbs applies only to the family care provision and not the self care provision. 

 

          Citing numerous precedents from the Fifth and other circuits, however, the court stated that “a claim for reinstatement [is] cognizable under Ex Parte Young,” because it is a claim for prospective relief. The University argued, based on statute-of-limitations cases, that “termination is a discrete act” and therefore reinstatement does not remedy a continuing violation of law. Cf., e.g., Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2169 (2007) (summary here) (listing termination and refusal to hire as discrete acts). The court said that this position “is not unreasonable, but we are confronted with years of caselaw to the contrary.” Specifically, the court was bound by circuit precedent that, under other statutes, found reinstatement to be valid prospective relief for constitutional violations.  Warnock v. Pecos County, 88 F.3d 341 (5th Cir.1996).

 

          In a footnote, the court recognized that this treatment of reinstatement was markedly different from that under statutes of limitations, but noted that “[s]uch a seeming inconsistency is unusual, but not unprecedented. The Ex parte Young doctrine itself represents a similar paradox-that an unconstitutional action by a state officer may be ‘state action’ for purposes of the Fourteenth Amendment, but not for purposes of the Eleventh Amendment.”