                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0003p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                           X
                                                            -
 RICARDO DIAZ,
                                                            -
                                 Plaintiff-Appellant,
                                                            -
                                                            -
                                                                 No. 11-1075
              v.
                                                            ,
                                                             >
                                                            -
                                                            -
 MICHIGAN DEPARTMENT OF CORRECTIONS;
                                                            -
 ROGER TIJERNIA, in his official and personal
                                                            -
 capacity; JOHN PRELESNIK, Warden, in his
                                                            -
                                                            -
 official and personal capacity,

                                                            -
                         Defendants-Appellees.
                                                            -
                                                            -
 CONNIE BODEN,                                              -
                                                            -
                                                            -
                                 Plaintiff-Appellant,
                                                                 No. 11-1213
                                                            -
                                                             >
                                                            -
              v.

                                                            -
                                                            -
 MICHIGAN DEPARTMENT OF HUMAN
 SERVICES, a department of the State of                     -
                                                            -
                                                            -
 Michigan, jointly and severally; DEBORAH

                                                            -
 COLE,
                                                            -
                        Defendants-Appellees.
                                                           N


                        Appeal from the United States District Court
                   for the Western District of Michigan at Grand Rapids.
                      No. 1:09-cv-1109—Janet T. Neff, District Judge
                    No. 1:09-cv-1144—Robert J. Jonker, District Judge.
                            Decided and Filed: January 7, 2013
 Before: ROGERS and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*




        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                  1
Nos. 11-1075/1213              Diaz v. Michigan Dep’t of Corrections, et al.                         Page 2


                                         _________________

                                               COUNSEL
ON BRIEF: Joni M. Fixel, FIXEL LAW OFFICES, Okemos, Michigan, for Appellants.
Michael O. King, Jr., OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellees.

                                         _________________

                                               OPINION
                                         _________________

          ALGENON L. MARBLEY, District Judge. In Nevada Department of Human
Resources v. Hibbs, the Supreme Court held that a state employee may recover money
damages in federal court for a state’s failure to comply with the family-care provision
of the Family Medical Leave Act (“FMLA” or “the Act”). 538 U.S. 721, 725 (2003);
see generally 29 U.S.C. § 2612(a)(1)(C). After the Supreme Court’s decision, this
Circuit held that a plaintiff could not bring a private suit for damages against a state
official for alleged violations of the FMLA arising from claimed entitlement leave under
29 U.S.C. § 2612(a)(1)(D) because the rationale in Hibbs did not extend to the FMLA’s
self-care provision. Touvell v. Ohio Dep’t of Mental Retardation & Developmental
Disabilities, 422 F.3d 392, 400 (6th Cir. 2005). Finally, citing Touvell, the Supreme
Court recently held that suits against the states for money damages under
§ 2612(a)(1)(D) are barred by the states’ immunity as sovereigns in our federal system.
Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1332 (2012).1

          In light of these precedents, Appellants Ricardo Diaz and Connie Boden attempt
to bring 42 U.S.C. § 1983 “and laws” suits2 to enforce their purported FLMA rights to
self-care leave against state officials in their individual capacities. Appellants contend


          1
              The Supreme Court had not yet decided Coleman when the parties filed their briefs in this
appeal.
          2
            Section 1983 provides that “[e]very person who . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added).
Nos. 11-1075/1213          Diaz v. Michigan Dep’t of Corrections, et al.            Page 3


they should also be allowed to bring a claim for equitable, prospective relief in the form
of reinstatement through the Ex parte Young3 exception to the Eleventh Amendment.
We AFFIRM the district courts’ dismissals of Appellants’ claims for monetary damages
because, for various reasons, Appellants cannot bring § 1983 “and laws” suits to enforce
their purported rights under the FMLA self-care provision. We REVERSE and
REMAND the district court’s dismissal of Count III in Diaz’s case, however, because
the district court erred when it dismissed Appellant Diaz’s claim for equitable,
prospective relief in the form of reinstatement.

                                              I.

                                              A.

       Appellant Ricardo Diaz was employed by the Michigan Department of
Corrections (“MDOC”) when he was diagnosed with heart and abdominal conditions
that forced him to take intermittent self-care leave. Diaz alleges he was fired for time
and attendance violations after taking various intermittent leaves and informing his
manager and the warden at MDOC that, as a result of his condition, it would be difficult
to predict when he would need to take time off in the future.

       Diaz sued MDOC, his manager, and the warden. He brought causes of action
alleging: interference with his FMLA rights against the manager and the warden in their
individual capacities in violation of § 1983 (count I); retaliation for exercising his FMLA
rights against the manager and the warden in their individual capacities in violation of
§ 1983 (count II); deprivation of a protected federal right against the manager and the
warden in their official capacities in violation of the doctrine of Ex parte Young (count
III); and violations of state law against all defendants (count IV). With respect to count
III, Diaz sought, inter alia, an order “returning [him] to his position at MDOC with no
loss of seniority, as prospective relief from the continuing violation of being denied his
rightful position,” pursuant to the Ex parte Young doctrine. 09-cv-1109, Doc. 2 at 11.



       3
           209 U.S. 123 (1908).
Nos. 11-1075/1213       Diaz v. Michigan Dep’t of Corrections, et al.               Page 4


       MDOC, the manager, and the warden filed a motion to dismiss all counts, which
was granted by the district court. The district court dismissed counts I and II because
the FMLA contains a comprehensive statutory remedial scheme that is more restrictive
than the remedies provided under § 1983, thus precluding Diaz from utilizing § 1983 as
a recovery vehicle. The district court also held that Diaz was prevented from properly
invoking the Ex parte Young exception to sovereign immunity in count III because:

       addressing plaintiff’s request for reinstatement would necessitate delving
       into the issue of whether defendants violated plaintiff’s FMLA rights,
       whether there is a continuing violation, and whether reinstatement is
       appropriate. If this Court cannot look back to make a determination on
       the substantive FMLA issue, it cannot decide, as a prospective matter, if
       the alleged violation continues. The Eleventh Amendment therefore
       presents a jurisdictional bar as plaintiff cannot properly invoke the Ex
       Parte Young exception to Eleventh Amendment sovereign immunity.

09-cv-1109, Doc. 17 at 8-9. Diaz’s state law claims were also dismissed by the district
court, but Diaz does not contest the dismissal of those claims in this appeal.

                                            B.

       Appellant Connie Boden was employed by the Michigan Department of Human
Services (“MDHS”) when she was placed on stress leave by her doctor. Boden alleges
that her supervisor dramatically increased her workload and disciplined her for petty
work-related infractions because of the self-care leave she took.

       Boden sued MDHS and her supervisor, alleging: interference with her FMLA
rights against her supervisor in her individual capacity in violation of § 1983 (count I);
retaliation for exercising her FMLA rights against her supervisor in her individual
capacity in violation of § 1983 (count II); claims for prospective relief in the form of an
injunction for further acts of discrimination and retaliation against her supervisor in her
official capacity, pursuant to the doctrine of Ex parte Young (count III); and violations
of state law against all defendants (counts IV–V).

       MDHS and the supervisor filed a motion to dismiss all counts, which was granted
by the district court. “For reasons stated in detail in the hearing,” the district court
Nos. 11-1075/1213            Diaz v. Michigan Dep’t of Corrections, et al.           Page 5


concluded that it lacked subject matter jurisdiction over counts I-III, and declined to
exercise supplemental jurisdiction over Boden’s state law claims. 09-cv-1144, Doc. 12
at 1.

                                                II.

        We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which grants
us jurisdiction over final decisions of the district courts.

                                               III.

        We review a district court’s decision dismissing a complaint under Federal Rule
of Civil Procedure 12(b)(6) de novo. Kostrzewa v. City of Troy, 247 F.3d 633, 638
(6th Cir. 2001). For purposes of this appeal, we treat as true all well-pled allegations in
the complaints. Id.

                                               IV.

                                                A.

        Appellants argue that they have a right to self-care leave under the FMLA, but
that Touvell has left them a “right without a remedy.” See Touvell, 422 F.3d at 400.
They should be able to use § 1983 “and laws” suits to enforce their FMLA self-care
rights against state officials in their individual capacities, Appellants contend, because
they have no remedy. Section 1983 provides that “[e]very person who . . . subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.” (Emphasis added). Recognizing that the
Supreme Court’s doctrine under Sea Clammers4/Rancho Palos Verdes5 would typically
bar the type of § 1983 “and laws” suit they attempt to bring, Appellants encourage us to



        4
            453 U.S. 1 (1981).
        5
            544 U.S. 113 (2005).
Nos. 11-1075/1213        Diaz v. Michigan Dep’t of Corrections, et al.                Page 6


consider the purpose and logic behind the Sea Clammers/Rancho Palos Verdes doctrine,
which, they argue, indicate their § 1983 “and laws” suits should not be barred.

        The FMLA entitles eligible employees to take up to 12 work weeks of unpaid
leave per year for: (A) “the birth of a son or daughter . . . in order to care for such son
or daughter,” (B) “the placement of a son or daughter with the employee for adoption
or foster care,” (C) the care of a “spouse, or a son, daughter, or parent” with a “serious
health condition,” and (D) the employee’s own “serious health condition that makes the
employee unable to perform the functions” of their employment.                    29 U.S.C.
§ 2612(a)(1). Subsection (D) is commonly referred to as the “self-care” provision. The
Act creates a private right of action to seek both equitable relief and money damages
“against any employer (including a public agency) in any Federal or state court of
competent jurisdiction.” 29 U.S.C. § 2617(a)(2).

        In Hibbs, the Supreme Court held that Congress could subject states to suit for
violations of subparagraph (C), which is commonly referred to as the “family-care”
provision. 538 U.S. at 725; see generally 29 U.S.C. § 2612(a)(1)(C). While “the
Constitution does not provide for federal jurisdiction over suits against nonconsenting
states,” sovereign immunity may be abrogated by Congress if it “makes its intention to
abrogate unmistakably clear in the language of the statute and acts pursuant to a valid
exercise of its power under § 5 of the Fourteenth Amendment.” Hibbs, 538 U.S. at 726
(internal citations omitted).

        The Hibbs Court found that the “clarity of Congress’ intent” with respect to the
FMLA was “not fairly debatable” because the Act enables employees to sue employers,
including public agencies, id.; see 29 U.S.C. § 2617(a)(2), and “public agency” is
defined under the FMLA to include both “the government of a state or political
subdivision thereof” and “any agency of . . . a State, or a political subdivision of a State.”
29 U.S.C. § 203(x). The case then turned on “whether Congress acted within its
constitutional authority when it sought to abrogate the states’ immunity for purposes of
the FMLA’s family-leave provision.” Hibbs, 538 U.S. at 726. The Court held that
Congress had, indeed, acted within the bounds of its authority because it cited evidence
Nos. 11-1075/1213       Diaz v. Michigan Dep’t of Corrections, et al.                Page 7


that the states had family-leave policies that differentiated on the basis of sex and
administered even neutral family-leave polices in a discriminatory fashion on the basis
of sex. Id. at 730–32. The Supreme Court therefore held that states could be subject to
suit for violations of the family-care provision. Id. at 735.

        Our Circuit held, thereafter, that the reasoning articulated in Hibbs did not apply
in the context of the FMLA’s self-care provision. Touvell, 422 F.3d at 400, 405.
“[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of
discrimination by the states regarding the availability and consequences of family-care
leave, there is no equivalent evidence that the self-care provision of the FMLA was
intended to, or did, target similar discrimination.” Id. at 405. The self-care provision,
rather, appears to be “social legislation designed to protect the seriously ill and their
families regardless of gender.” Id. Although an “admirable goal, it is not one that
permits Congress to abrogate the Eleventh Amendment immunity of the states from
private suit for damages.” Id.

        After Touvell, the Supreme Court held that suits against states for money
damages under the self-care provision are barred by the doctrine of sovereign immunity.
Coleman, 132 S. Ct. at 1332. The Court noted that its decision was “[i]n agreement with
every Court of Appeals [decision] to have addressed this question,” including Touvell.
Id. (citations omitted). Unlike the legislative history of the family-care provision, which
indicated that “Congress relied upon evidence of a well-documented pattern of sex-based
discrimination in family-leave policies,” id. at 1334 (citing Hibbs, 538 U.S. at 730–31),
the legislative history of the self-care provision “reveals a concern for the economic
burdens on the employee and the employee’s family resulting from illness-related job
loss and a concern for discrimination on the basis of illness, not sex.” Id. at 1335 (citing
S. Rep. No. 103-3, at 11–12 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 11–12; H.R. Rep.
No. 101-28, at 23 (1989)).

        Conceding that the self-care provision did offer some women a benefit by
allowing them to take leave for pregnancy-related illnesses, the Court nevertheless
reasoned that the remedy in the provision “is not congruent and proportional to any
Nos. 11-1075/1213       Diaz v. Michigan Dep’t of Corrections, et al.               Page 8


identified constitutional violations.” Id. For example, “[a]t the time of the FMLA’s
enactment, ‘ninety-five percent’ of state employees had paid sick-leave plans at work,
and ‘ninety-six percent’ had short-term disability protection,” and thus, “state employees
presumably could take leave for pregnancy-related illnesses under these policies.” Id.
Suits against a state under § 2612(a)(1)(D) are barred, the Court held, because Congress
had failed to “identify a pattern of constitutional violations and tailor a remedy
congruent and proportional to the documented violations” when it allowed employees
to sue states for money damages for violations of the self-care provision. Id. at 1338;
see Steers v. Michigan, No. 12-10900, 2012 WL 2568169, at *2 (E.D. Mich. July 3,
2012) (citing Coleman and explaining that, while the plaintiff who was suing the state
could potentially recover damages for the alleged FMLA violations under the family-
care provision, she could not do so under the self-care provisions).

       While Appellants attempt to bring § 1983 “and laws” suits as a result of this
precedent, their attempts fail for numerous reasons. First, Appellants bring FMLA
claims against state officials in their individual capacities. This Circuit has held that
public employers cannot be held individually liable under the FMLA. Mitchell v.
Chapman, 343 F.3d 811, 825–26, 829 (6th Cir. 2003) (deciding “whether the FMLA
provides for individual liability against a public employer” as a “matter of first
impression,” and finding, because of the Act’s text and framework, that it does not); see
also Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999) (same); but see Darby v.
Bratch, 287 F.3d 673, 680–82 (8th Cir. 2002) (holding that, as an issue “of first
impression for our Court,” a public official may be held liable in his or her individual
capacity for violations of the FMLA); Modica v. Taylor, 465 F.3d 174, 184–87 (5th Cir.
2006) (same).

       Moreover, Appellants do not have a right to sue state officials for monetary
damages for alleged violations of the self-care provision of the FMLA. See Coleman,
132 S. Ct. at 1332; Touvell, 422 F.3d at 400. Without the right to bring suit against state
officials for monetary damages under the Act’s self-care provision, Appellants have no
rights that can be enforced through § 1983. See 42 U.S.C. § 1983 (“[e]very person who
Nos. 11-1075/1213       Diaz v. Michigan Dep’t of Corrections, et al.                Page 9


. . . subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress”) (emphasis added).
Appellants cannot use § 1983 “and laws” suits to circumvent Supreme Court precedent
in an attempt to enforce a right to money damages that they do not have.

        Even if Appellants had the right to seek damages from state officials for alleged
violations of the FMLA’s self-care provision, the Sea Clammers/Rancho Palos Verdes
doctrine would prevent Appellants from enforcing that right using a § 1983 action. In
Middlesex County Sewerage Authority v. National Sea Clammers Association, fishermen
brought suit alleging violations of the Federal Water Pollution Control Act, 33 U.S.C.
§ 1251 et seq. (“FWPCA”), and the Marine Protection, Research, and Sanctuaries Act
of 1972, 33 U.S.C. § 1401 et seq. (“MPRSA”), after polluters damaged fishing grounds.
453 U.S. 1, 4–5 (1981). While the FWPCA and the MPRSA contain express citizen-suit
provisions, they authorize private parties to sue for injunctive relief only. Id. at 13–14.
Consequently, Plaintiffs brought federal common law claims as well to recover money
damages. Id. at 4–5.

        The Supreme Court held that plaintiffs could not use federal common law or
§ 1983 as vehicles to enforce federal statutory laws where the FWPCA and MPRSA
contained elaborate enforcement provisions. Id. at 14-15, 21. With “so many specific
statutory remedies, including the two citizen-suit provisions,” the Court found it difficult
to believe “that Congress intended to preserve the § 1983 right of action.” Id. at 20.

        Similar to the FWPCA and MPRSA, the Telecommunication Act of 1996
(“TCA”), 110 Stat. 56, which was at issue in Rancho Palos Verdes, permits private
parties to seek redress through administrative channels and injunctive relief, but not
through monetary damages. See Rancho Palos Verdes v. Abrams, 544 U.S. 113, 116,
118 (2005). The Supreme Court held that Congress must have intended for the remedies
under the TCA to be the exclusive relief available to plaintiffs alleging a TCA violation
Nos. 11-1075/1213       Diaz v. Michigan Dep’t of Corrections, et al.             Page 10


because the TCA’s remedy was more restrictive than the remedy in a § 1983 action. Id.
at 121–26.

          As a result of the Clammers/Rancho Palos Verdes precedent, we must examine
whether (1) the FMLA’s remedial provisions are comprehensive, which would indicate
that Congress intended to exclude other remedies; and (2) whether the FMLA’s remedies
are more restrictive than § 1983’s remedies. We keep in mind that “[t]he provision of
an express, private means of redress in the statute itself is ordinarily an indication that
Congress did not intend to leave open a more expansive remedy under § 1983.” Id. at
121.

       The FMLA’s remedial provisions are comprehensive on their face. See 29
U.S.C. § 2617(a)(1). A plaintiff who successfully asserts a FMLA claim can receive
damages including, inter alia, wages, salary, employment benefits, liquidated damages,
interest, and equitable relief. Id. There are provisions in the FMLA which provide
methods for calculating damages in the form of actual monetary losses sustained where
wages, salary, employment benefits, or other compensation have not been denied or lost.
29 U.S.C. § 2617(a)(1)(A)(i)(II). A plaintiff can also be awarded liquidated damages
in certain scenarios. 29 U.S.C. § 2617(a)(1)(A)(iii). These provisions, which provide
direction as to how to calculate damages in particular circumstances, are more restrictive
than the remedies available under § 1983.

       It is apparent from the plain language of the FMLA remedial provisions that
Congress intended to exclude other remedies. The FMLA therefore precludes resort to
§ 1983.

       The district court in Diaz’s case dismissed Diaz’s FMLA claims on the basis that
a § 1983 “and laws” suit is barred by the Clammers/Rancho Palos Verdes doctrine.
Appellants concede that the district court’s application of the Clammers/Rancho Palos
Verdes doctrine was “a technically correct application,” but argue that the district court
“fail[ed] to give effect to the purpose and logic of those decisions.” Appellants Br. at
19 (emphasis in original). That purpose and logic, Appellants argue, is to prevent
plaintiffs from using § 1983 as “an end-run around statutory remedial scheme, not to
Nos. 11-1075/1213            Diaz v. Michigan Dep’t of Corrections, et al.                        Page 11


prevent plaintiffs from ever being able to enforce the right granted by statute [as
Appellants contend they are here].” Id. Appellants argue they have no remedy to
enforce their self-care rights as a result of this Circuit’s decision in Touvell.

         Appellants’ purpose and logic argument is unpersuasive because, as explained
supra, they do not have the right to bring suit for monetary damages against their state
officials under the self-care provision of the FMLA. As explained in Coleman, if
Congress wants to abrogate states’ immunity under the self-care provision, it must do
so through a valid exercise of its power under § 5 of the Fourteenth Amendment.
132 S. Ct. at 1338. Appellants may not circumvent sovereign immunity by bringing
§ 1983 “and laws” suits.

                                                    B.

         Appellants argue that they can seek prospective relief against state officials, in
their official capacity, in the form of reinstatement to their positions, through Ex parte
Young. Appellants contend that termination in retaliation for taking self-care leave
under the FMLA is an ongoing violation and reinstatement into their positions is
prospective relief.

         Our examination of the record reveals that only Appellant Diaz was terminated
and seeks reinstatement. Appellant Boden’s amended complaint contains no allegations
that she was terminated in retaliation for taking self-care leave. Boden did seek
prospective relief in the form of an injunction for further acts of discrimination and
retaliation (count III), but she does not make any arguments on appeal related to count
III. We therefore address only Diaz’s argument here.6

         The requested reinstatement remedy forces us to examine the extent to which the
Ex parte Young doctrine saves a FMLA claim for prospective relief from the Eleventh
Amendment bar. While on its face the Eleventh Amendment bars “any suit in law or


         6
           In her third claim for relief, Boden asks for injunctive relief preventing her supervisor, in her
official capacity, from further acts of discrimination and retaliation. Such relief could, potentially, be
construed as prospective in nature and subject to the Ex parte Young exception, but Appellants make no
arguments in their briefs related to Boden’s third count. Therefore, we need not address it on this appeal.
Nos. 11-1075/1213            Diaz v. Michigan Dep’t of Corrections, et al.                         Page 12


equity, commenced or prosecuted against one of the United States,” the Supreme Court
announced an exception to Eleventh Amendment sovereign immunity in Ex parte Young
for claims for injunctive relief against individual state officials in their official
capacities. See 209 U.S. 123 (1908). In order to fall within the Ex parte Young
exception, a claim must seek prospective relief to end a continuing violation of federal
law. See MacDonald v. Vill. of Northport, Mich., 164 F.3d 964, 970-72 (6th Cir. 1999).
Retroactive relief is barred by the Eleventh Amendment. Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 103 (1984). Importantly, in Carten v. Kent State University,
this Circuit held that “claims for reinstatement are prospective in nature and appropriate
subjects for Ex parte Young actions.” 282 F.3d 391, 396 (6th Cir. 2002) (citing Turker
v. Ohio Dep’t. of Rehab. & Corrs., 157 F.3d 453, 459 (6th Cir. 1998)).

         The FMLA’s remedial provisions state that an employer who violates the FMLA
may be liable to an eligible employee “for such equitable relief as may be appropriate,
including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B).
Under this Circuit’s precedent and Ex parte Young, the Eleventh Amendment does not
bar suits for equitable, prospective relief, such as reinstatement, against state officials
in their official capacity. Congress did not have to abrogate sovereign immunity where
a state employee sues a state official in his or her official capacity seeking equitable,
prospective relief in the form of reinstatement for violations of the self-care provision
because the Eleventh Amendment does not act as a bar to such suits in the first instance.
Section 2617(a)(1)(B) was, therefore, a constitutional exercise of Congress’s powers.

         Notably, the holdings in both Touvell and Coleman7 are narrower than both
parties acknowledge. For example, Appellees argue that: “Appellants have no rights
derived from FMLA. This Court has held that the self-care provisions of FMLA are
unconstitutional as applied to the states.” Appellee Br. at 17. This characterization of
precedent is not accurate. The Supreme Court and this Circuit barred suits for damages


         7
           The parties had the benefit of the former opinion, but not the latter, when briefing these issues.
Admittedly, the Supreme Court in Coleman was more explicit in explaining that the Court’s holding
applied only to suits for monetary damages, but a careful reading of Touvell indicates that its holding was
similarly limited.
Nos. 11-1075/1213       Diaz v. Michigan Dep’t of Corrections, et al.              Page 13


only, not for equitable relief. Coleman, 132 S. Ct. at 1338 (holding that Congress did
not validly abrogate states’ sovereign immunity from suits for money damages in
enacting FMLA’s self-care provision); Touvell, 422 F.3d at 400 (“[W]e agree . . . Hibbs
does not apply to the self-care provision of the FMLA, and that private suits for damages
may not be brought against states for alleged violations of the Act arising from claimed
entitlement to leave under § 2612(a)(1)(D)”) (emphasis added). FMLA’s provision
providing a right of action against public agencies for equitable relief has not, therefore,
been deemed unconstitutional. See 29 U.S.C. § 2617(a)(2) (“[a]n action to recover the
damages or equitable relief prescribed in paragraph (1) may be maintained against any
employer (including a public agency) in any Federal or state court of competent
jurisdiction by any one or more employees”) (emphasis added).

        The district court dismissed Diaz’s claim for reinstatement, reasoning that “[i]f
this Court cannot look back to make a determination on the substantive FMLA issue, it
cannot decide, as a prospective matter, if the alleged violation continues.” (09-cv-1109,
Doc. 17 at 8-9.) To support its reasoning, the district court quoted Verizon Maryland
Inc. v. Public Service Commission of Maryland, in which the Supreme Court explained
that “a court need only conduct a straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective” to determine whether the Ex parte Young doctrine avoids an Eleventh
Amendment bar to suit. 535 U.S. 635, 645 (2002) (internal citations and quotation
marks omitted).

        The district court’s reasoning is flawed, as is Appellees’ unsupported contention
that “any inquiry into whether there is a continuing violation of a federal law would
require the trial court to examine the merits of Appellants’ alleged FMLA violations”
and “is barred by the Eleventh Amendment.” Appellee Br. at 18. The Eleventh
Amendment bars a plaintiff from seeking retrospective relief against a state official in
his or her official capacity, but it does not bar the district court from examining the
allegations to determine whether there is an ongoing violation of federal law. This Court
Nos. 11-1075/1213        Diaz v. Michigan Dep’t of Corrections, et al.               Page 14


has held that a claim for reinstatement is prospective relief, Carten, 282 F.3d at 396, and,
neither Touvell nor Coleman bars this inquiry.

         In Seminole Tribe of Florida v. Florida, the Supreme Court held that, “where
Congress has prescribed a detailed remedial scheme for the enforcement against a state
of a statutorily created right, a court should hesitate before casting aside those limitations
and permitting an action against a state officer based upon Ex parte Young.” 517 U.S.
44, 74 (1996). Appellees argue that Diaz’s claim for reinstatement is barred by Seminole
Tribe.

         The Seminole Tribe precedent does not prevent Diaz from bringing his claim for
reinstatement. The Seminole Tribe Court explained that, although the Supreme Court
often found “federal jurisdiction over a suit against a state official when that suit
[sought] only prospective injunctive relief in order to ‘end a continuing violation of
federal law,’” the situation presented in Seminole Tribe was “sufficiently different from
that giving rise to the traditional Ex parte Young action so as to preclude the availability
of that doctrine.” Id. at 73 (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). The
Court’s holding that Ex parte Young did not apply was based on specific language in the
Indian Gaming Regulatory Act, 25 U.S.C. §§ 2710 et seq., which set up intricate
procedures related to equitable relief under its remedial scheme. Id. at 74–75.

         For example, under 25 U.S.C. § 2710(d)(3), when Seminole Tribe was decided,
if a state failed to negotiate in good faith in violation of the Indian Gaming Regulatory
Act, the only remedy prescribed under 25 U.S.C. § 2710(d)(3) was an order directing the
State and the Indian tribe to conclude a compact within 60 days. Id. at 74. If the parties
failed to conclude a compact within the 60-day period, the only sanction available under
§ 2710(d)(3) was that each party be required to submit a proposed compact to a mediator
charged with selecting the proposal that best embodied the terms of the Indian Gaming
Regulatory Act. Id. Finally, if the state failed to accept the mediator’s chosen compact,
the mediator would so notify the Secretary of the Interior, who would in turn prescribe
regulations governing class III gaming on the tribal lands at issue. Id. at 74–75.
Allowing a claim to proceed under Ex parte Young would have rendered such procedures
Nos. 11-1075/1213      Diaz v. Michigan Dep’t of Corrections, et al.            Page 15


superfluous because a state official would have been exposed to the full remedial power
of the federal court. Id. at 75. The Supreme Court made clear, however, that “we do not
hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a
cause of action with a limited remedial scheme,” but “only that Congress did not intend
that result in the Indian Gaming Regulatory Act.” Id. at 75 n.17 (emphasis in original).

       The FMLA’s remedial provision simply states that an employer who violates the
FMLA shall be liable for “for such equitable relief as may be appropriate, including
employment, reinstatement, and promotion.” See 29 U.S.C. § 2617(a)(1)(B). This
language does not create intricate procedures like those that, in Seminole Tribe,
prevented the Court from allowing a claim to proceed under Ex parte Young.

       Thus, the district court erred when it dismissed Diaz’s claim for equitable,
prospective relief in the form of reinstatement. The appropriate inquiry on remand is
whether Diaz sufficiently alleged an ongoing violation of federal law to maintain his
equitable claim.

                                 V. CONCLUSION

       We AFFIRM the district court’s decision dismissing all of Boden’s claims. We
also AFFIRM the district court’s decision dismissing Diaz’s FMLA claims brought
under § 1983 (counts I and II), but REVERSE and REMAND the district court’s
decision dismissing Diaz’s claim for reinstatement (count III).
