Dalvan M. Coger Joseph K. Davis Carolyn Thorpe Furr Lucille Golightly Thomas M. Hughes Janie S. Knight Charles E. Long, Jr. Harry Richard Mahood Ramona Madson Mahood Robert Marshall Betty Hull Owen June Rose Richie Steve Scesa Charles R. Schroeder Robert A. Snyder Bob J. Tucker Sharon L. Van Oteghen, William Welch, United States of America v. Board of Regents of the State of Tennessee, a Subdivision of the State of Tennessee Memphis State University, an Institution Operated by the State Board of Regents Thomas G. Carpenter, Individually and as President of Memphis State University Victor E. Feisal, Individually and as Vice-President of Academic Affairs at Memphis State University

209 F.3d 485 (6th Cir. 2000)

DALVAN M. COGER; JOSEPH K. DAVIS; CAROLYN THORPE FURR; LUCILLE GOLIGHTLY; THOMAS M. HUGHES; JANIE S. KNIGHT; CHARLES E. LONG, JR.; HARRY RICHARD MAHOOD; RAMONA MADSON MAHOOD; ROBERT MARSHALL; BETTY HULL OWEN; JUNE ROSE RICHIE; STEVE SCESA; CHARLES R. SCHROEDER; ROBERT A. SNYDER; BOB J. TUCKER; SHARON L. VAN OTEGHEN, PLAINTIFFS-APPELLANTS, WILLIAM WELCH, PLAINTIFF, UNITED STATES OF AMERICA, INTERVENOR, V. BOARD OF REGENTS OF THE STATE OF TENNESSEE, A SUBDIVISION OF THE STATE OF TENNESSEE; MEMPHIS STATE UNIVERSITY, AN INSTITUTION OPERATED BY THE STATE BOARD OF REGENTS; THOMAS G. CARPENTER, INDIVIDUALLY AND AS PRESIDENT OF MEMPHIS STATE UNIVERSITY; VICTOR E. FEISAL, INDIVIDUALLY AND AS VICE-PRESIDENT OF ACADEMIC AFFAIRS AT MEMPHIS STATE UNIVERSITY, DEFENDANTS-APPELLEES

No. 97-5134

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 30, 1998 Decided and Filed: April 4, 2000

On Remand from the United States Supreme Court. No. 89-02374--Julia S. Gibbons, Chief District Judge.

Donald A. Donati (argued and briefed), Donati Law Firm, Jeffrey L. Atchley (briefed), Norwood, Wilson & Atchley,Memphis, Tennessee, for Plaintiffs-Appellants.

Michael E. Moore (argued and briefed), Office of the Attorney General, Criminal Justice Division, Nashville, Tennessee, for Defendant-Appellee Board of Regents of State of Tennessee.

1

Seth M. Galanter (argued and briefed), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Intervenor.

2

Jeffrey S. Sutton (argued and briefed), Jack W. Decker, Office of the Attorney General, Columbus, Ohio, for Amici Curiae State of Ohio.

3

Sheri H. Lipman (briefed), Burch, Porter & Johnson, Memphis, Tennessee, for Defendant-Appellee Memphis State University.

4

Douglas A. Hedin (briefed), Law Office of Douglas A. Hedin, Minneapolis, Minnesota, for Amicus Curiae National Employees Lawyers Association.

5

Thomas W. Osborne (briefed), American Association of Retired Persons, Washington, D.C., for Amicus Curiae American Association of Retired Persons.

6

Before: Jones, Moore, and Cole, Circuit Judges.

OPINION 7

R. Guy Cole, Jr., Circuit Judge.

8

In our prior opinion in this case, Coger v. Board of Regents, 154 F.3d 296, 307 (6th Cir. 1998), we concluded that Congress intended to abrogate the states' Eleventh Amendment immunity from suit by its enactment of the 1974 amendments to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and that it had the authority to do so pursuant to Section 5 of the Fourteenth Amendment. The Supreme Court, in a plurality opinion, now has determined that although the ADEA does contain a clear statement of Congress' intent to abrogate the states' immunity, the abrogation exceeded Congress' authority under Section 5 of the Fourteenth Amendment. See Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, 649-50 (2000).

9

Having carefully considered the present case in light of Kimel, we conclude that the faculty members cannot maintain their ADEA suit against the University, a state employer. We therefore VACATE our prior judgment and AFFIRM the district court's order dismissing the plaintiffs' ADEA action.