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Supreme Court Holds No Waiver of Sovereign Immunity for FMLA’s Self-Care Provision

In Coleman v. Maryland Court of Appeals, No. 10-1016 (decided March 20, 2012), the Supreme Court in a 5-4 decision has decided that – unlike the family leave provisions of the FMLA – Congress did not adequately abrogate the States’s sovereign immunity for the FMLA’s self-care provisions. In so doing, the court affirmed the Fourth Circuit, 626 F.3d 187 (4th Cir. 2010), and agreed with the five other appellate courts that had held the same way.

Despite the lack of any apparent Circuit split on the issue, the Supreme Court granted Coleman’s petition to address the question of “[w]hether Congress constitutionally abrogated states’ Eleventh Amendment Immunity when it passed the self-care provision of the Family and Medical Leave Act.”  This was the Court’s second look at FMLA Eleventh Amendment immunity.

The Eleventh Amendment bars suit in federal court against a non-consenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity.  To do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power.  Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996).  The Supreme Court first considered Eleventh Amendment immunity under the FMLA in 2003, in Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003).  Hibbs considered whether the FMLA’s third provision — care of a close family member — validly abrogated states’ Sovereign immunity.  Concluding that there was a valid abrogation of Sovereign immunity there, the Court focused exclusively on the gender discrimination that motivated enactment of the FMLA. In Coleman, the Court found no similar evidence of constitutional violations that could support the abrogation of immunity.

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