                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-1996

Blanciak v. Allegheny Ludlum Corp.
Precedential or Non-Precedential:

Docket 95-3055




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1996/234


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Tech Init51
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 95-3055




       ROBERT J. BLANCIAK; RAYMOND BOWMAN; WILLIAM BURKETT;
       MARLIN D. BYERS; RICHARD COOK; ROBERT E. DELLEDONNE;
       JACK DELCIMMUTO; RICHARD T. FARAH; DONALD E. HOLMES;
          JAMES MARKYBY; DONALD C. MILLER; HOWARD MUMAU;
      DOMONIC POCETTI; EDWARD E. PRIMACK; ANTHONY RODNICKI;
         WILLIAM D. ROWE; DON SHELLHAMMER; PAUL R. SIBIK;
      JAMES WALKER; THEODORE W. WALKER; FRANCIS N. AMARANTO;
    LEROY A. CALDERONE; RONALD E. CALHOUN; LOUIS ECARAVAGGIO;
      JOSEPH W. CLARK; GEORGE L. FLEEGER; RONALD R. FULTON;
       RICHARD L. GEORGE; JOHN M. GULYAS; JACK C. HESKETH;
      ROBERT HUTCHERSON; ROBERT D. KNABB; BERNARD C. KUMPF;
       WILLIAM JOHN MORDA; JAMES E. PATTY; LAURA G. POSKUS;
     ARTHUR L. RAMER; F. EUGENE SMELTZER; ROBERT L. STEWART;
     WESLEY E. SUMAN; DOUGLAS E. TALMADGE; JACK WILMOT, JR.,
individually and on behalf of all other persons similary situated
                                v.

       ALLEGHENY LUDLUM CORPORATION; UNITED STEELWORKERS OF
      AMERICA; and COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT
     OF LABOR & INDUSTRY; HARRIS WOFFORD, Secretary of Labor
   and Industry; MAURICE NATES; JOHN KRISIAK; STELLA RAVETTO;
      R. C. THOMAS; CHARLES E. SWARTZ, and various JOHN DOE,
                        and or JANE DOE(S)

                        ROBERT J. BLANCIAK, RAYMOND BOWMAN,
                        JOSEPH W. CLARK; JACK DELCIMMUTO;
                        RICHARD T. FARAH, RICHARD GEORGE;
                        JOHN M. GULYAS; JACK C. HESKETH;
                        DONALD E. HOLMES; ROBERT D. KNABB;
                        JAMES MARKBY; DONALD C. MILLER;
                        JAMES E. PATTY; DOMINIC POCETTI;
                        EDWARD E. PRIMACK; ANTHONY RODNICKI;
                        WILLIAM ROWE; DON SHELLHAMMER;
                        F. EUGENE SMELTZER; ROBERT L. STEWART;
                        DOUGLAS E. TALMADGE and JAMES WALKER,

                                                  Appellants




                               1
          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA



                    Argued: October 27, 1995
        Before:   STAPLETON, McKEE and GIBSON1, Circuit Judges
                    (Filed February 16, 1995)



                              JAMES B. LIEBER (ARGUED)
                              Lieber & Hammer
                              5528 Walnut St.
                              Pittsburgh, PA 15232

                              Counsel for Appellants


                              ERNEST D. PRAETE
                              Attorney General

                              GLORIA A. TISCHUK (ARGUED)
                              Deputy Attorney General

                              Office of the Attorney General
                              4th Floor, Manor Complex
                              564 Forbes Avenue
                              Pittsburgh, PA 15219

                              Counsel for Appellee




                       OPINION OF THE COURT




McKEE, Circuit Judge



1
        The Honorable John R. Gibson, Senior Circuit Judge for
the Eighth Circuit, sitting by designation.

                                2
     We are asked to determine whether the Eleventh Amendment to

the United States Constitution bars a federal court from

considering an age discrimination claim against the Commonwealth

of Pennsylvania, Department of Labor and Industry

("Commonwealth"), that was acting in its capacity as an

"employment agency" under the Age Discrimination in Employment

Act ("ADEA"), 29 U.S.C. § 621, et seq., when the alleged

discrimination occurred.     We must also determine whether the

Eleventh Amendment bars an equitable award of "front pay" against

the Commonwealth and its officials under 42 U.S.C. § 1983.

Because we conclude that Congress has not abrogated the Eleventh

Amendment's grant of constitutional immunity to states while

acting as employment agencies under the ADEA, we will affirm the

district court's finding that plaintiffs' ADEA claims are barred

by the Eleventh Amendment.     Furthermore, because we conclude that

plaintiffs' equitable "front pay" claims under § 1983 seek

monetary compensation to remedy a past wrong, we will affirm the

district court's finding that the Eleventh Amendment bars those

claims.     Finally, we conclude that plaintiffs' remaining

declaratory and injunctive claims under § 1983 have been rendered

moot.



                                  I.

        The facts relevant to this appeal are easily summarized.   In

January 1988, the United States Steel Corporation ("USX") placed

its Vandergrift, Pennsylvania plant in an idled status and

stopped manufacturing or shipping products from the facility.


                                  3
Allegheny Ludlum Corporation ("Allegheny Ludlum") negotiated with

USX and purchased the plant in June, 1988.   In order to initially

staff the facility, Allegheny Ludlum decided to hire fifty-five

hourly employees from amongst the 125 who had previously worked

at the plant.   Accordingly, Allegheny Ludlum entered into an

agreement with the United Steelworkers of America ("USWA")

pursuant to which Allegheny Ludlum established a preferential

hiring list for former Vandergrift employees who were USWA

members (the "Agreement"). The Agreement gave Allegheny Ludlum

the absolute right to select and assign thirty of the initial

fifty-five hires.   The remaining twenty-five were to be selected

on the basis of continuous service, provided that they

demonstrated the requisite skills for anticipated tasks.

     The Job Services offices of the Commonwealth of Pennsylvania

function as a no-fee employment service to bring employers and

job seekers together.   The offices administer a General Aptitude

Test Battery ("GATB") for use in referring applicants to

cooperating companies that are looking for workers.   The GATB

consists of twelve separately timed tests which purportedly

measure a broad range of occupationally relevant cognitive,

perceptual and psychomotor skills.   In June 1988, Allegheny

Ludlum requested the New Kensington and Kittanning Job Services

offices to accept applications and administer GATB tests to those

individuals on its preferential hiring list.

     The instant litigation arose when a group of former USX

employees over the age of forty filed a civil action for damages,

declaratory and injunctive relief against Allegheny Ludlum, the


                                4
USWA and the Commonwealth of Pennsylvania, Department of Labor

and Industry, its Secretary and various employees ("the

Commonwealth").   The Complaint alleged that the staffing of the

Vandergrift facility violated the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; the Fair Labor

Standards Act ("FLSA"), 29 U.S.C. § 216 et seq.; the Employee

Retirement Income Security Act, 29 U.S.C. § 1000 et seq.; the

Labor Management Relations Act of 1947, 29 U.S.C. § 1985; the

Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et

seq.; and the Due Process Clause of the Fourteenth Amendment,

actionable under 42 U.S.C. § 1983.   Plaintiffs brought suit as a

class action under 29 U.S.C. § 216(b).2   The complaint alleged


2     1 The class action was brought ". . .on behalf of all
other persons similarly situated who are at least 40 years old
who have been, are being, or will be adversely affected by the
Defendants' unlawful age discrimination in employment policies
and practices. The 'Class' which Plaintiffs seek to represent,
and of which Plaintiffs are themselves members, is composed and
defined as follows:
          All persons, male and female, now named or hereafter
          executing and filing written consents to participate
          and join in this action, pursuant to 29 U.S.C. §216(b),
          who were, at any time from on or about 1987-1988 to
          date:
          (a) at least 40 years of age;
          (b) employed by USX at its. . .facility in
Vandergrift,
                Pennsylvania; which plant was sold to Allegheny
                Ludlum;
          (c) subject to a collective bargaining agreement, and
                represented by the USWA;
          (d) involuntarily retired and/or not employed at
                Allegheny Ludlum for age motivated reasons;
          (e) subjected to such adverse employment actions as
                described infra in connection with the Allegheny
                Ludlum manning program for Vandergrift and nearby
                facilities. . ." Complaint, ¶ 8.



                                5
that the defendants' had discriminated against the employees in

the class on the basis of age by administering the GATB.

     Following discovery, plaintiffs entered a sealed settlement

agreement and stipulated to the dismissal of all claims against

Allegheny Ludlum and the USWA.    The remaining Commonwealth

defendants then moved for summary judgment based upon the

sovereign immunity enjoyed by the Job Services offices of the

Commonwealth under the Eleventh Amendment.3   The district court

granted the Commonwealth's motion based upon sovereign immunity,

and ruled that plaintiffs' remaining injunctive and declaratory

claims against the Commonwealth had been rendered moot by the

settlement agreement with Allegheny Ludlum and the USWA.    This

appeal followed.



                                 II.

     We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291.   Dismissal of an action based upon sovereign immunity is

subject to plenary review by this Court.   Fitchik v. New Jersey

Transit Rail Operations, 873 F.2d 655, 658 (3d Cir. 1989), cert

     Unlike   a Rule 23 class action, a 29 U.S.C. § 216(b) class
action does   not bind those who fit within the class description
unless they   opt in. Title 29 U.S.C. § 626(b) permits the use of
a 29 U.S.C.   § 216(b) opt-in class action in ADEA cases.
3
        Although defendants brought their Eleventh Amendment
objection by way of a motion for summary judgment under
Fed.R.Civ.P. 56(b), the Eleventh Amendment is a jurisdictional
bar which deprives federal courts of subject matter jurisdiction.
See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-
100, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984). Accordingly,
the motion may properly be considered a motion to dismiss the
complaint for lack of subject matter jurisdiction under
Fed.R.Civ.P. 12(b)(1).

                                 6
denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989).      The

district court's decision that this case is moot is also subject

to plenary review.    Northeast Women's Center, Inc. v. McMonagle,

939 F.2d 57, 61 (3d Cir. 1991).



                                III.

                                      A.

     The Eleventh Amendment of the United States Constitution

provides that:
     The Judicial power of the United States shall not be
     construed to extend to any suit in law or equity
     commenced or prosecuted against any one of the United
     States by Citizens of another State, or by Citizens
     or Subjects of any Foreign State.


U.S. Const. amend. XI.    The Amendment has been interpreted to

protect an unconsenting state from "suit in federal court by its

own citizens as well as those of another state."    Pennhurst State

School v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-08, 79

L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504,

33 L.Ed. 842 (1890).

     There are, however, certain well-established exceptions to

the protection of the Eleventh Amendment.    Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87

L.Ed.2d 171 (1985).    If a state waives its immunity and consents

to suit in federal court, the Eleventh Amendment does not bar the

action.   See e.g., Id. at 234, 105 S.Ct. at 3142; Clark v.

Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780

(1883).   Moreover, Congress may specifically abrogate the states'



                                  7
Eleventh Amendment immunity.    See e.g., Fitzpatrick v. Bitzer,

427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (finding

abrogation in legislation passed pursuant to § 5 of the

Fourteenth Amendment); and Pennsylvania v. Union Gas Co., 491

U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d. 1 (1989) (finding abrogation

in legislation passed pursuant to the Congress' Article I, § 8

plenary power over commerce).    Here, appellants contend that

Congress specifically abrogated the sovereign immunity of states

and all state agencies in amending the ADEA, and that the

Eleventh Amendment therefore presents no bar to their ADEA claim

against the Commonwealth.   However, the plain language of the

ADEA defeats this argument.

     Two conditions must be met before we can decide that

Congress abrogated the states' Eleventh Amendment immunity in

enacting or amending the ADEA.    First, the congressional

legislation in question must articulate an unequivocal

congressional intention to abrogate the sovereign immunity of the

states.    Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397,

2401, 105 L.Ed.2d 181 (1989); Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146-47, 87 L.Ed.2d

171 (1985).   On more than one occasion, the Supreme Court has

said that Congress "must express its intention to abrogate the

Eleventh Amendment in unmistakable language in the statute

itself."   Atascadero, 473 U.S. at 242, 105 S.Ct. at 3148;

Dellmuth, 491 U.S. at 230, 109 S.Ct. at 2401 ("[E]vidence of

congressional intent must be both unequivocal and textual."). "In

traditionally sensitive areas, such as legislation affecting the


                                 8
federal balance, the requirement of clear statement assures that

the legislature has in fact faced, and intended to bring into

issue, the critical matters involved in the judicial decision."

United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30

L.Ed.2d 488 (1971).   Second, the Constitution must give Congress

the power to abrogate the states' Eleventh Amendment immunity.

The party asserting Eleventh Amendment immunity bears the burden

of proving its applicability.   Christy v. Pennsylvania Turnpike

Comm., 54 F.3d 1140, 1144 (3d Cir. 1994).     The Supreme Court has

yet to determine if Congress possesses the power to abrogate the

states' historic Eleventh Amendment immunity when neither

legislating to enforce the prohibitions of the Fourteenth

Amendment nor acting to regulate interstate commercial activity

under the Commerce Clause.

     Here, we have no trouble resolving the second part of this

inquiry as the Supreme Court has held the ADEA to be a valid

exercise of Congress' plenary power to regulate interstate

commerce under the Commerce Clause.   See   EEOC v. Wyoming, 460

U.S. 226, 243, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983).

Moreover, virtually every court which has addressed the question

has concluded that the ADEA was validly enacted pursuant to

Congress' power to enforce section five of the Fourteenth

Amendment.   See e.g., Hurd v. Pittsburg State University, 821

F.Supp. 1410, 1413 (D.Kan. 1993), aff'd, 29 F.3d 564, 565 (10th

Cir.), cert denied __ U.S. __, 115 S.Ct. 321, 130 L.Ed.2d 282

(1994); Bell v. Purdue University, 975 F.2d 422, 425 n.5 (7th

Cir. 1992); Davidson v. Bd. of Gov. of State Coll. & Univ., 920


                                9
F.2d 441, 443 (7th Cir. 1990); Ramirez v. Puerto Rico Fire

Service, 715 F.2d 694, 700 (1st Cir. 1983) Arritt v. Grisell, 567

F.2d 1267, 1271 (4th Cir. 1977); ; Swanson v. Dept. of Health,

773 F.Supp. 255, 258 (D.Colo. 1991); but see, Black v. Goodman,

736 F.Supp. 1042, 1045 (D.Mont. 1990).

       The ADEA, as amended in 1974, makes it unlawful for an

"employer" to fail or refuse to hire or to discharge or otherwise

discriminate against any individual because of such individual's

age.    29 U.S.C. §§ 623(a)(1), 626(b)-(c).   The Act defines the

term "employer" to include "a State or political subdivision of a

State and any agency or instrumentality of a State or a political

subdivision of a State," 29 U.S.C. § 630(b)(2), and explicitly

provides that an "employer" who violates the Act is liable for

legal and equitable relief.

       Unless Congress had said in so many words that it was
       abrogating the states' sovereign immunity in age
       discrimination cases--and that degree of explicitness
       is not required, (citations omitted) --it could not
       have made its desire to override the states'
       sovereign immunity clearer.


Davidson, 920 F.2d at 443.

The statute simply leaves no room to dispute whether states and

state agencies are included among the class of potential

defendants when sued under the ADEA for their actions as

"employers."

       However, that does not end our inquiry.   Plaintiffs agree

that any ADEA liability in the instant action arises because the

Commonwealth was acting as an "employment agency," and not in the



                                 10
capacity of an "employer" in administering the GATB.   The ADEA

defines an "employment agency" as "any person regularly

undertaking with or without compensation to procure employees for

an employer and includes an agent of such person; but shall not

include an agency of the United States."   29 U.S.C. § 630(c).

Accordingly, we must decide whether the Eleventh Amendment bars

ADEA claims brought against a State while acting in its capacity

as an employment agency.   This question is one of first

impression for this Court, and our research reveals only one

other court to have directly addressed the issue.4

     In 1974, Congress explicitly expanded the ADEA definition of

"employer" to include "a State or political subdivision of a

State and any agency or instrumentality of a State or a political

subdivision of a State." 29 U.S.C. § 630(b)(2).   However, at the

same time, Congress failed to similarly expand the statutory

definition of "employment agency."   Congress merely amended that

language by deleting the italicized portion below:
     (c) the term "employment agency" means any person
     undertaking with or without compensation to procure
     employees for an employer and includes an agent of such
     person; but shall not include an agency of the United
     States or an agency of a State or political subdivision
     of a State, except that such term shall include the
     United States Employment Service and the system of State
     and local employment services receiving Federal assistance.

4
        Here, the district court relied on its own precedent in
Radeschi v. Commonwealth of Pennsylvania, 846 F.Supp. 416
(W.D.Pa. 1993). In Radeschi, the district court dismissed the
ADEA claim of a job applicant who sued the Commonwealth of
Pennsylvania after the state employment agency refused to refer
him as a result of an aptitude test. The court held that the
Eleventh Amendment bar remained in place for the Commonwealth
while acting in its capacity as an employment agency. 846
F.Supp. at 421.


                                11
Act of April 8, 1974, Pub.L. 93-259, 1974 U.S.C.A.A.N. (93 Stat.)

78 (codified at 29 U.S.C. § 630).    In effect, Congress simply

deleted the language explicitly excluding state employment

agencies from the reach of the ADEA.    At the same time, however,

Congress failed to specifically include state actors within the

definition of "employment agency."    Moreover, Congress failed to

expressly incorporate state actors into the definition of

"person" used in 29 U.S.C. § 630.    Section 630(a) of the ADEA

defines "person" as "one or more individuals, partnerships,

associations, labor organizations, corporations, business trusts,

legal representatives, or any organized group of persons."

Accordingly, the intent of Congress to abrogate the Eleventh

Amendment immunity of states while acting as employment agencies

is not clear.   Congress certainly could have amended the

definition of "employment agency" in the same manner that it so

clearly amended "employer" in 29 U.S.C. § 630.   We can only

assume that Congress's failure to do so was significant.

     Appellants contend that it is hardly conceivable that

Congress, having fully extended ADEA liability to the states,

would carve out a special immunity for states while engaging in

employment services.   Such a result, they suggest, would not only

be illogical but unjustifiable on policy grounds.   Furthermore,

appellants point out that state employment agencies are held

liable for discriminatory practices under the closely analogous

statutory framework of Title VII, and they therefore urge us to




                                12
be guided by those cases that have decided this issue under Title

VII.5

        These arguments, though well-reasoned, miss the point.     Our

inquiry here is severely limited, and we must find congressional

intent to abrogate sovereign immunity solely from "the

unmistakable language of the statute itself."     Atascadero 473

U.S. at 242, 105 S.Ct. at 3148.    Accordingly, our analysis can

not expand to encompass the analogy and policy considerations

that plaintiffs now urge upon us.      Though one may question the

policy justifications for furnishing a special statutory immunity

to states while engaged in employment services, the ADEA's

treatment of the question is, at best, ambiguous.      The

limitations of Atascadero, and our traditional constraints

against acting as a "super legislature" preclude us from reading

language into this statute that Congress did not enact, and may

well not have intended.    See e.g., City of New Orleans v. Dukes,

427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976)

("[T]he judiciary may not sit as a superlegislature to judge the

wisdom or desirability of legislative policy determinations made

in areas that neither affect fundamental rights nor proceed along

suspect lines."); see also, Griswold v. Connecticut, 381 U.S.

5
        Title VII defines an "employment agency" as "any person
regularly undertaking with or without compensation to procure
employment for an employer or to procure for employees
opportunities to work for an employer and includes an agent of
such a person." 42 U.S.C. § 2000e(c). A "person" is
specifically defined to include "governments, governmental
agencies. . ." 42 U.S.C. § 2000e(a). Thus, Congress has made it
"unmistakably clear" that no Eleventh Amendment immunity exists
for governmental employment agencies and services, state or
federal, under Title VII.

                                  13
479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1964).

     The statutory language of the ADEA simply does not evince an

unmistakably clear intention to abrogate the states' Eleventh

Amendment immunity from suit while acting in their capacity as

employment agencies under that Act.   Accordingly, we will affirm

the district court's holding that plaintiffs' ADEA claims against

the Commonwealth are barred by the Eleventh Amendment.



                                B.

     Plaintiffs also brought suit against the Commonwealth and

various of its officials, acting within the scope their official

capacities, for equal protection and due process violations under

42 U.S.C. § 1983.   Plaintiffs alleged that the Commonwealth's

administration of the "arbitrary and discriminatory" GATB posed

an unconstitutional bar to employment with Allegheny Ludlum.

Since the Commonwealth was not the employer here, it was

obviously not in a position to reinstate the steelworkers.

Accordingly, plaintiffs prayed for an equitable award of "front

pay" as their remedy.   The district court correctly held that

plaintiffs' § 1983 "front pay" claims were barred by the Eleventh

Amendment.

     The Supreme Court has held that States are not "persons"

within the meaning of § 1983 and, therefore, cannot be among

those held liable for violations of the civil rights statute.

Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109

S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) ("Section 1983 provides a

federal forum to remedy many deprivations of civil liberties, but


                                14
it does not provide a federal forum for litigants who seek a

remedy against a State for alleged deprivations of civil

liberties.").     Since Congress expressed no intention of

disturbing the states' sovereign immunity in enacting § 1983,

these suits, when brought against a state, are barred by the

Eleventh Amendment.    Id. at 58, 109 S.Ct. at 2310; Quern v.

Jordan, 440 U.S. 332, 339-346, 99 S.Ct. 1139, 1144-1148, 59

L.Ed.2d 358 (1979).    Accordingly, plaintiffs' claims for "front

pay" must fail.

     The analysis under the Eleventh Amendment in a § 1983 suit

is less straightforward, however, when a state official (as

opposed to the state itself) is named as defendant.     Papasan v.

Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209

(1986).   In Will, the Supreme Court held that state officials

acting in their official capacities are not "persons" under

§1983.    491 U.S. at 71, 109 S.Ct. at 2312 ("A suit against a

state official in his or her official capacity. . .is no

different from a suit against the State itself.").     Nevertheless,

in certain circumstances, those officials may still be subject to

federal suit, despite the Eleventh Amendment, under the narrow

exception of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

714 (1908).

     In Ex parte Young, the Supreme Court held that the Eleventh

Amendment did not bar a federal court action to enjoin the

Attorney General of Minnesota from enforcing a state statute

claimed to violate the Fourteenth Amendment.     209 U.S. at 166-

168; 28 S.Ct. at 456-457.    The only relief awarded in Ex parte


                                  15
Young was prospective, injunctive relief; requiring the Attorney

General to conform his future, official conduct to the dictates

of the Fourteenth Amendment.   The Supreme Court reasoned that the

actions of a state official taken pursuant to an unconstitutional

state enactment could not be regarded as "official or

representative" since the underlying state authorization for

these actions would be void under the Constitution.     Ex parte

Young, 209 U.S. at 160, 28 S.Ct. at 454 ("If the act which the

state attorney general seeks to enforce be a violation of the

Federal Constitution. . .he is in that case stripped of his

official or representative character. . .").     Accordingly, the

state official, although formally acting in an official or

representative capacity, may nevertheless be sued in federal

court.

     The applicability of Ex parte Young has been tailored by the

Supreme Court "to conform as precisely as possible to those

specific situations in which it is necessary to permit the

federal courts to vindicate federal rights and hold state

officials responsible to the supreme authority of the United

States." Papasan, 478 U.S. at 277, 106 S.Ct. at 2940 (citing

Pennhurst, 465 U.S. at 105, 104 S.Ct. at 910).

     Young has been focused on cases in which a violation of
     federal law by a state official is ongoing as opposed to
     cases in which federal law has been violated at one time or
     over a period of time in the past as well as on cases
     in which the relief against the state official directly
     ends the violation of federal law as opposed to cases in
     which that relief is intended indirectly to encourage
     compliance with federal law through deterrence or directly
     to meet third-party interests such as compensation.



                                16
Papasan, 478 U.S. at 277-278, 106 S.Ct. at 2940.    Accordingly,

relief that essentially serves to compensate a party injured in

the past by the action of a state official, even though styled as

something else, is barred by the Eleventh Amendment.     See e.g.,

Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d

371 (1985); Edelman v. Jordan, 415 U.S. 651, 664-668, 94 S.Ct.

1347, 1356-1358, 39 L.Ed.2d 662 (1974).    On the other hand,

"relief that serves directly to bring an end to a present,

continuing violation of federal law is not barred by the Eleventh

Amendment even though accompanied by a substantial ancillary

effect on the state treasury."   Papasan, 478 U.S. at 278, 106

S.Ct. at 2940 (citing Milliken v. Bradley, 433 U.S. 267, 289-290,

97 S.Ct. 2749, 2761-2762, 53 L.Ed.2d 745 (1977); Edelman, 415

U.S. at 667-668, 94 S.Ct. at 1357-1358).

       In the instant case, appellants characterize their § 1983

actions as equitable claims for prospective relief only, i.e.,

"front pay" damages, but that label is of no importance.     This

Court must look to the substance rather than the form of the

relief requested to determine whether appellants' claims are

barred by the Eleventh Amendment.     Papasan, 478 U.S. at 279, 106

S.Ct. at 2940-2941.

       In their complaint, plaintiffs' § 1983 "front pay" claims

targeted the official acts of Job Service employees in

administering the GATB and assisting in the hiring of employees

for the Allegheny Ludlum facility.    Complaint, ¶ 110-120, 143-

144.    In pressing those claims before this Court, counsel for

appellants argues that "the GATB posed an unconstitutional bar to


                                 17
[the steelworkers'] employment. . .[and] harmed them in that they

did not receive jobs with Allegheny Ludlum."     Appellant's Brief

at 39.

     We find appellants' § 1983 "front pay" claims to be neither

prospective nor equitable as they have been presented to this

court.   Appellants' specific allegations target past conduct, and

the "front pay" remedy is not intended to halt a present,

continuing violation of federal law.     Rather than vindicating

federal rights by holding state officials accountable to the

Constitution, we believe that "front pay" relief, under the

circumstances of this case, would provide nothing more than

compensatory damages which would have to be paid from the

Commonwealth's coffers.   Plaintiffs' request for "front pay" does

not, therefore, fall within the boundaries of permissible relief

defined by   Ex Parte Young and we therefore affirm the district

court's holding that these claims are barred by the Eleventh

Amendment.



                                 C.

     Finally, plaintiffs advanced claims for declaratory and

injunctive relief against the Commonwealth and various of its

officials under 42 U.S.C. § 1983.     Plaintiffs requested the

district court "to both declare the administration of the GATB

test unlawful and enjoin the Commonwealth from any further

administration of it."    Appellant's Brief at 42.   After reviewing

plaintiffs' sealed settlement agreement with Allegheny Ludlum and

the USWA, the district court concluded that plaintiffs had


                                 18
already attained all the relief sought in this litigation, and it

dismissed these claims as moot.    Appellants argue that they have

a sufficiently cognizable interest in the continuing adverse

impact of the GATB to satisfy the requirements for standing on

their declaratory and injunctive claims. They suggest:
     Appellants' GATB scores will follow them all of
     the days of their lives, and throughout the course
     of their working lives, unless Commonwealth's use
     of the GATB test is enjoined.

     Appellants may not be able to work in the future
     because their GATB results may preclude them
     getting a job. The test results become part of
     their records. . .and cannot be changed.


Appellants' Brief at 43-44.     Appellants claim that poor GATB

results are "much like a scarlet letter."     Id. at 44.   However,

Hester Prynne's fall from grace does not suggest that the

district court erred.

        Generally speaking, a case becomes moot when the issues are

no longer live or the parties lack a cognizable interest in the

outcome.    Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944,

1951, 23 L.Ed.2d 491 (1969).    Article III's "case or controversy"

requirement prevents federal courts from deciding cases that are

moot.    See e.g., Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84

S.Ct. 391, 394 n.3, 11 L.Ed.2d 347 (1964).    If developments occur

during the course of adjudication that eliminate a plaintiff's

personal stake in the outcome of a suit or prevent a court from

being able to grant the requested relief, the case must be

dismissed as moot.    See e.g., Rosetti v. Shalala, 12 F.3d 1216,

1224 (3d Cir. 1993); Brock v. International Union, UAW, 889 F.2d



                                  19
685 (6th Cir. 1989);         United States Parole Commission v.

Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479

(1980) (The interest required of a litigant to maintain a claim

under the mootness doctrine is the same as that required to

attain standing).

      The ultimate question before us is whether appellants'

declaratory and injunctive claims pertaining to the

Commonwealth's administration of the GATB have been rendered too

speculative, hypothetical or abstract to warrant further judicial

review.      "Past exposure to illegal conduct does not in itself

show a present case or controversy. . .if unaccompanied by any

continuing, present adverse effects."          O'Shea v. Littleton, 414

U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974).

Accordingly, in the aftermath of the steelworkers' settlement

agreement with Allegheny Ludlum and the USWA, appellants must

demonstrate some injury, or threat thereof, "of sufficient

immediacy and ripeness to warrant judicial intervention."              See

Warth v. Seldin, 422 U.S. 490, 516, 95 S.Ct. 2197, 2214, 45

L.Ed.2d 343 (1975).         This determination "depends in large part on

a uniquely individualized process. . .centered on the facts and

parties of each case."         See 13A WRIGHT, MILLER & COOPER: FEDERAL

PRACTICE   AND   PROCEDURE, § 3533.5 (1984).

      We believe adjudication of appellants' remaining declaratory

and injunctive claims is not only barred by Article III but

foreclosed by prudential concerns as well.           In the district

court, appellants adduced evidence that GATB results become part

of an employee's permanent record and that more than one thousand


                                       20
Pennsylvania employers, including numerous steel companies,

utilize the exam as an important job screening device.   Moreover,

evidence indicated that one appellant, Richard Farah, may not

have been hired in the past by a steel company which utilizes the

GATB to screen applicants.6   Accordingly, appellants argue that

continued use of the exam would engender a cognizable danger of

future harm in the Pennsylvania job market.

     Under the totality of circumstances here, we cannot agree.

In Warth, the Supreme Court addressed the intervention of an

association of construction firms in a suit in which the

plaintiffs alleged that a town's zoning ordinance violated the

Fourteenth Amendment.   The association claimed that the ordinance

deprived some of its members of business opportunities and

revenues.   The Court reasoned as follows in finding that the

association lacked standing:
     The complaint refers to no specific project of any
     of [the association's] members that is currently
     precluded. . .There is no averment that any member
     has applied to respondents for a building permit or
     a variance. . .Indeed, there is no indication that
     respondents have delayed or thwarted any project
     currently proposed by [the association's] members
     . . .


Warth, 422 U.S. at 516, 95 S.Ct. at 2214.
     In the instant case, none of the appellants claim a present

injury from the Commonwealth's administration of the GATB.7     No
6
        Mr. Farah was subsequently hired by Allegheny Ludlum
pursuant to the Settlement Agreement.
7
        Although appellants do not specifically advance such an
argument, it may be suggested that appellants suffer a present
injury from the Commonwealth's continued use of the GATB in the
form of diminished career expectations. We need decide whether

                                 21
appellant claims to be seeking a job in Pennsylvania that would

require the GATB.   Moreover, it appears that Richard Cook, the

only appellant to have an active registration with the appellee

Commonwealth Job Service was referred to a job opening.    In

short, there is no hint in the record of any present or imminent

future harm from the Commonwealth's alleged conduct.   Any

relevant injury that may befall any of the appellants is

contingent upon a host of occurrences, each of which is just too

speculative to fulfill the requirement of a present "case of

controversy."   The record does not indicate that any of the

appellants are currently unemployed or, for any other reason, are

currently seeking employment.   Moreover, to be affected by the

practice sought to be enjoined, an appellant seeking employment

would have to seek it in Pennsylvania, register with the

Commonwealth Job Service and apply for a position that requires

the GATB.   The Supreme Court has repeatedly recognized that

claims predicated upon such speculative contingencies afford no

basis for finding the existence of a continuing controversy as

required by Article III.   See e.g., Rizzo v. Goode, 423 U.S. 362,

371-73, 96 S.Ct. 598, 604-05, 46 L.Ed.2d 561 (1976); DeFunis v.

Odegaard, 416 U.S. 312, 320 n.5, 94 S.Ct. 1704, 1707 n.5, 40

L.Ed.2d 164 (1974).   Accordingly, we cannot conclude that

appellants have demonstrated any injury, or threat thereof, "of

such an abstract expectation can give rise to a "case or
controversy." See e.g., Schlesinger v. Reservists Committee to
Stop the War, 418 U.S. 208, 216-227, 94 S.Ct. 2925, 2930-2935, 41
L.Ed.2d 706 (1974) (Discussing the distinction between injury in
the abstract, which does not confer standing, and concrete
injury).


                                22
sufficient immediacy and ripeness" to satisfy the jurisdictional

requirements of the federal courts. Warth 422 U.S. at 516, 95

S.Ct. at 2214.        Moreover, even if appellants' remaining

claims were not constitutionally moot, this Court would have

ample reason to exercise its discretionary power to withhold the

requested relief on prudential grounds.    "The discretionary power

to withhold injunctive and declaratory relief for prudential

reasons, even in a case not constitutionally moot, is well

established."    S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir.

1987); see also, United States v. W.T. Grant, 345 U.S. 629, 73

S.Ct. 894, 97 L.Ed. 1303 (1953); A.L. Mechling Barge Lines, Inc.

v. U.S., 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961).      For

many of the same reasons articulated by the Fourth Circuit Court

of Appeals in Spangler, we believe prudence would require this

Court to withhold any declaratory or injunctive relief under the

present circumstances.     In Spangler, the parents of two

handicapped children brought a § 1983 action for declaratory and

injunctive relief against the North Carolina State Board of

Education for the refusal of its hearing officers to award

tuition reimbursements as a remedy for violations of the

Education of Handicapped Act, 20 U.S.C. § 1400 et seq. ("EHA").

The district court granted the parents' motion for summary

judgment.   While the appeal was pending, the parents reached a

settlement agreement with the Asheboro City Board of Education.

Under the terms of the agreement, the parents dismissed all their

claims against the City Board in return for the City Board's

agreement to pay their accrued tuition expenses.    The State Board


                                 23
was not a party to the agreement.       Nevertheless, in light of the

change in circumstances, the court concluded that the parents'

remaining declaratory and injunctive claims against the State

Board should be treated as moot for prudential reasons. Spangler,

832 F.2d at 297.

       The court reached this result for three reasons.    First,

since the parents had already received tuition reimbursement for

all past tuition expenses incurred and were not currently paying

tuition that was subject to reimbursement because of the

placement of their children in an acceptable public school

program, they had no imminent need for a hearing on entitlement

to tuition reimbursement.   Id. at 297.      Second, the presence of

complicated and sensitive Eleventh Amendment issues persuaded the

court that it "would be imprudent to address the merits of this

appeal now that the basic claim. . .ha[d] been settled."       Id. at

298.    Finally, the court believed that the issues raised did not

require immediate resolution as "capable of repetition yet likely

to evade review."    Id. at 298.   Accordingly, the court exercised

its discretionary power to treat the appeal as moot on prudential

grounds.

       In the instant appeal, we are presented with similar

Eleventh Amendment concerns in the context of a case in which

reinstatement and/or compensatory damages -- the ultimate object

of the steelworkers' underlying action -- has already been

supplied by virtue of a settlement agreement.      Consequently, we

believe that resolution of this sensitive constitutional question




                                   24
would be better left to a court presented with a more concrete

and immediate dispute.

     Accordingly, we will affirm the district court's conclusion

that plaintiffs' declaratory and injunctive relief claims against

the Commonwealth and various of its officials under § 1983 are

moot.




                               25
                              IV.

     For the foregoing reasons, we affirm the judgment of the

district court.




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