                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-4064
GEORGE S. TOELLER,
                                          Plaintiff-Appellee,
                              v.

WISCONSIN DEPARTMENT OF CORRECTIONS,
                                       Defendant-Appellant.
                       ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
      No. 03-C-826—Aaron E. Goodstein, Magistrate Judge.
                       ____________
     ARGUED APRIL 4, 2006—DECIDED AUGUST 25, 2006
                      ____________


  Before POSNER, WOOD, and EVANS, Circuit Judges.
  WOOD, Circuit Judge. This case reaches us on an inter-
locutory appeal by the Wisconsin Department of Corrections
(WDOC), challenging the district court’s decision to deny its
motion to dismiss based on the State’s Eleventh Amend-
ment immunity from suit. Although WDOC acknowledges
that the Supreme Court decided in Nevada Dep’t of Human
Res. v. Hibbs, 538 U.S. 721 (2003), that the family-care
provision of the federal Family and Medical Leave Act
(FMLA), 29 U.S.C. §§ 2602 et seq., validly abrogated the
State’s immunity, it argues that the self-care provisions of
the same statute must be evaluated separately. Once this
is done, the State continues, the applicable rule is the one
2                                                  No. 05-4064

upholding the State’s Eleventh Amendment immunity in a
claim under Title I of the Americans with Disabilities Act
(ADA), which prohibits discrimination in employment
against qualified persons with a disability, 42 U.S.C.
§§ 12112(a), 12111(2), (5), (7). Bd. of Trs. of the Univ. of Ala.
v. Garrett, 531 U.S. 356 (2001). While we consider the
question a close one, in the end we agree with our sister
circuits that Garrett controls the self-care provision, and
thus that the State is entitled to immunity here. See
Touvell v. Ohio Dep’t of Mental Retardation and Develop-
mental Disabilities, 422 F.3d 392 (6th Cir. 2005), cert.
denied, 126 S.Ct. 1339 (2006); Brockman v. Wyo. Dep’t of
Family Servs., 342 F.3d 1159 (10th Cir. 2003). We therefore
reverse.


                               I
  In 1996, WDOC hired George Toeller as a Facilities
Repair Worker at the Racine Correctional Institution. Two
years later, he was transferred to the Racine Youthful
Offender Facility. Between that time and 2000, he experi-
enced a number of traumatic events, including the deaths
of family members and close friends. He began to suffer
from stress anxiety and delusional disorder, which made it
impossible for him to work. As of July 2000, he began
to receive a series of letters from WDOC charging him
with various types of misconduct at the workplace and
attempting to schedule a medical evaluation. During this
time, Toeller was absent from work frequently; WDOC
repeatedly asked him to provide medical certification for
those absences, but he did not do so. He did, however, use
sick days as WDOC policy required, until he exhausted
them. Then, on October 5, 2000, he submitted a request
for unpaid leave under the FMLA until October 23, 2000,
when his doctor released him to work. WDOC never
expressly granted or denied this request, but under its
No. 05-4064                                                  3

general policy, leave without pay is granted automatically
if it is not expressly granted or denied within two busi-
ness days.
   When Toeller returned to work, on October 23, he was
suspended with pay pending an investigation of a variety of
infractions of workplace rules. On October 26, 2000, Toeller
received a written notice of termination from the Warden,
indicating that he was being fired for several reasons:
threatening and attempting to inflict bodily harm on
another person in July 2000; insubordination; and excessive
unexcused absences from work. Toeller claims that these
grounds were pretextual and that the real reason he was
fired was because he took unpaid medical leave under the
FMLA.
  On August 29, 2003, he filed a complaint against WDOC
in federal court, alleging that WDOC had terminated his
employment in violation of the FMLA’s self-care provisions,
29 U.S.C. § 2612(a)(1)(D), and seeking money damages.
WDOC responded with a motion to dismiss on the ground
of the State’s Eleventh Amendment immunity from suit.
The district court denied that motion. After some discovery,
WDOC filed a motion for summary judgment on the merits,
in which it again raised its Eleventh Amendment defense.
The district court denied the motion, concluding that
Congress validly abrogated the State’s immunity in the
FMLA and thus that the suit could proceed. The State has
appealed from the second order denying its immunity
defense.


                              II
  Before considering the merits of WDOC’s appeal, we must
resolve a preliminary question of appellate jurisdiction.
WDOC argues that this court has jurisdiction over the
district court’s order rejecting its defense, noting that it is
established that “States . . . may take advantage of the
4                                                No. 05-4064

collateral order doctrine to appeal a district court order
denying a claim of Eleventh Amendment immunity.” Nanda
v. Bd. of Trs. of Univ. of Ill., 303 F.3d 817, 821 (7th Cir.
2002) (quoting Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)). Toeller
acknowledges this rule, but he argues that WDOC failed
to file its notice of appeal within the time permitted by FED.
R. APP. P. 4(a)—a step that is also required before this court
may entertain the appeal.
  Toeller’s position, however, rests on the mistaken premise
that WDOC had one and only one opportunity to take an
interlocutory appeal on this issue. He believes that this
opportunity arose after the district court’s initial denial of
the State’s motion to dismiss, which was docketed on
December 23, 2003. But Behrens v. Pelletier, 516 U.S. 299
(1999), held to the contrary, in the closely-related area of
interlocutory appeals from denials of motions to dismiss on
qualified immunity grounds. See id. at 307. We see no
reason why the rationale of Behrens should not apply with
equal force to interlocutory appeals of Eleventh Amendment
immunity claims. From that standpoint, WDOC’s notice of
appeal easily satisfied Rule 4(a). The district court denied
WDOC’s motion for summary judgment (which included its
renewed Eleventh Amendment defense) on September 29,
2005, and the State filed its notice of appeal comfortably
within the 30-day period allowed by the rule, on October 17,
2005. We conclude that we have jurisdiction over this
appeal and thus may proceed to the merits.


                             III
  The first question we must reach—and as it turns out the
last one—is whether WDOC is entitled to immunity from
suit here. That is the question that is properly before us on
interlocutory appeal. In addition, state sovereign immunity
No. 05-4064                                                 5

is the kind of preliminary question that should be resolved
before the merits of the claim.
  As the Supreme Court stated in Garrett, “[t]he ultimate
guarantee of the Eleventh Amendment is that non-
consenting States may not be sued by private individuals in
federal court. . . . We have recognized, however, that
Congress may abrogate the States’ Eleventh Amendment
immunity when it both unequivocally intends to do so and
act[s] pursuant to a valid grant of constitutional authority.”
531 U.S. at 363 (citations and quotation marks omitted). In
a number of cases decided over the last ten years, the Court
has upheld the immunity of the states in a variety of
settings. See, e.g., Garrett, supra (immunity from suit under
Title I of the ADA); Kimel v. Fla. Bd. of Regents, 528 U.S.
62 (2000) (immunity from suit under the Age Discrimina-
tion in Employment Act); Coll. Savs. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)
(immunity in suit brought under federal Lanham Act for
unfair competition); Seminole Tribe of Fla. v. Florida, 517
U.S. 44 (1996) (immunity from suit under Indian Gaming
Regulatory Act). On the other hand, the Court has rejected
immunity claims also, where it has found that Congress
validly abrogated the States’ sovereign immunity. See, e.g.,
Cent. Va. Cmty. Coll. v. Katz, 126 S.Ct. 990 (2006) (holding
that suit to set aside preferential transfer in bankruptcy is
not barred by state sovereign immunity, because federal
supremacy was part of the original constitutional plan);
United States v. Georgia, 126 S.Ct. 877 (2006) (holding that
Title II of the ADA validly abrogates state sovereign
immunity insofar as the lawsuit addresses conduct that
actually violates the Fourteenth Amendment); Tennessee v.
Lane, 541 U.S. 509 (2004) (Title II of the ADA validly
abrogates state sovereign immunity); Tenn. Student
Assistance Corp. v. Hood, 541 U.S. 440 (2004) (bankruptcy
court’s exercise of its in rem jurisdiction to discharge a
student loan is not barred by state sovereign immunity);
6                                                    No. 05-4064

Hibbs, supra, 538 U.S. 721 (2003) (family-care provision of
the FMLA validly abrogated the state’s immunity).1
  A number of general principles emerge from this develop-
ing jurisprudence. First, the sovereign immunity of the
States is a fundamental feature of the constitutional design.
Justice Thomas summarized this basic point in Northern
Ins. Co. of N.Y. v. Chatham County, Ga., 126 S.Ct. 1689
(2006), a case in which the Court held that counties do not
have the right to claim this immunity:
    This Court’s cases have recognized that the immunity
    of States from suit “is a fundamental aspect of the
    sovereignty which the States enjoyed before the ratifica-
    tion of the Constitution, and which they retain today .
    . . except as altered by the plan of the Convention or
    certain constitutional Amendments.” Alden v. Maine,
    527 U.S. 706, 713 (1999); see Seminole Tribe of Fla. v.
    Florida, 517 U.S. 44, 55-56 (1996); Principality of


1
   These cases, taken as a whole, demonstrate that the Court has
taken care to draw important, and sometimes subtle, constitu-
tional lines in this area. Both for that reason, and for reasons
requiring basic courtesy to the courts, we find much of the rhetoric
in WDOC’s brief to be entirely out of line. It is not up to Attorney
General Peggy A. Lautenschlager or Assistant Attorney General
Richard B. Moriarty to accuse Justices of the Supreme Court of
making “remarkably intransigent statements,” or to use a
disrespectful tone in criticizing dissenting Justices merely for the
fact that they wrote a dissent, or to opine about “polarizing
declarations.” The tradition of writing dissenting opinions has
existed in the United States Supreme Court since the beginning
of the Republic, and every Justice on the Court avails himself or
herself of that privilege when he or she deems it appropriate.
Counsel’s brief is also less than helpful where it draws bizarre
analogies to opinions about the current presence of American
troops in Iraq, which has absolutely nothing to do with this case.
We trust that the State of Wisconsin will adopt a more appropri-
ate tone in future briefs filed with this court.
No. 05-4064                                               7

    Monaco v. Mississippi, 292 U.S. 313, 322-23 (1934).
    Consistent with this recognition, which no party asks
    us to reexamine today, we have observed that the
    phrase “ ‘Eleventh Amendment immunity’ . . . is conve-
    nient shorthand but something of a misnomer, for the
    sovereign immunity of the States neither derives from,
    nor is limited by, the terms of the Eleventh Amend-
    ment.” Alden, supra, at 713.
126 S.Ct. at 1693. The Court has recognized that the
constitutional plan includes the power of Congress to
abrogate the States’ sovereign immunity, “when it both
unequivocally intends to do so and acts pursuant to a valid
grant of constitutional authority.” Garrett, 531 U.S. at
363 (quotations omitted). If and to the extent that a con-
gressional enactment meets those criteria, then a private
party is entitled to sue the State under the federal law in
question. See United States v. Georgia, supra, 126 S.Ct. at
881-82.
  The Court has found in a number of instances that
Congress has satisfied the clear statement rule. See, e.g.,
Garrett, 531 U.S. at 364 (ADA); Kimel, 528 U.S. at 73-74
(ADEA). Importantly for the present case, one of those
statutes is the FMLA. See Hibbs, 538 U.S. at 726. Nothing
in that part of Hibbs suggests that the Court’s ruling
covered anything less than the entire statute. We therefore
take as established the fact that the FMLA passes that first
hurdle.
  At least in recent years, since Congress has learned that
the Court will be satisfied with nothing less than language
that “mak[es] its intention [to abrogate] unmistakably
clear,” Kimel, 528 U.S. at 73 (quotations omitted), applica-
tion of the clear statement criterion has been relatively
straightforward. It is the second inquiry, whether Congress
has acted pursuant to a valid grant of constitutional
authority, that has been more difficult. One such valid
8                                                No. 05-4064

grant is contained in section 5 of the Fourteenth Amend-
ment, when Congress acts to enforce the substantive
guarantees of that amendment and, if it has acted pro-
phylactically, the legislation exhibits “congruence and
proportionality between the injury to be prevented or
remedied and the means adopted to that end.” See Hibbs,
538 U.S. at 728 (quoting City of Boerne v. Flores, 521 U.S.
507, 520 (1997)); see also United States v. Georgia, 126 S.Ct.
at 881.
  Although at one point it seemed as if constitutional
provisions added after the effective date of the Eleventh
Amendment, such as the Fourteenth Amendment, were
the only possible source of valid constitutional authority for
Congress, the Supreme Court corrected that impression in
its decision in Central Virginia Community College v. Katz,
supra, 126 S.Ct. 990. In keeping with the Court’s broader
recognition that the Eleventh Amendment neither created
nor limited the States’ sovereign immunity, see Northern
Ins., supra, the Court clarified in Katz that other provisions
of the Constitution might also provide a source of authority
for Congress in this area. In Katz, the Court concluded that
the Bankruptcy Clause of Art. I, sec. 8, was such a provi-
sion:
    It is appropriate to presume that the Framers of the
    Constitution were familiar with the contemporary legal
    context when they adopted the Bankruptcy Clause—a
    provision [that] . . . reflects the States’ acquiescence in
    a grant of congressional power to subordinate to the
    pressing goal of harmonizing bankruptcy law sovereign
    immunity defenses that might have been asserted in
    bankruptcy proceedings. The history of the Bankruptcy
    Clause, the reasons it was inserted in the Constitution,
    and the legislation both proposed and enacted under its
    auspices immediately following ratification of the
    Constitution demonstrate that it was intended not just
    as a grant of legislative authority to Congress, but also
    to authorize limited subordination of state sovereign
    immunity in the bankruptcy arena.
No. 05-4064                                                   9

126 S.Ct. at 996. Later in the opinion, the Court made clear
that the States had agreed to this part of the constitutional
plan when they ratified the 1787 Constitution, just as they
agreed to limitations on their sovereignty in 1868 almost
eighty years later when they ratified the Fourteenth
Amendment:
    Insofar as orders ancillary to the bankruptcy courts’ in
    rem jurisdiction, like orders directing turnover of
    preferential transfers, implicate States’ sovereign
    immunity from suit, the States agreed in the plan of the
    Convention not to assert that immunity.
Id. at 1002.
  Although we are thus well aware of the fact that section
5 of the Fourteenth Amendment is not the only possible
source of congressional power to abrogate the States’
sovereign immunity, we see no other candidate in this case.
Neither of the parties has suggested any alternative, nor
are we inclined to reach out and propose one on our own.
The analysis in Hibbs focuses exclusively on section 5 as the
relevant provision for purposes of the FMLA. We therefore
turn to the analysis of Toeller’s FMLA claim on the assump-
tion that it can go forward only if it rests on a valid exercise
of section 5 power.
  The operative language of the Family and Medical Leave
Act, 29 U.S.C. § 2612, protects an employee’s right to take
leave for several reasons:
    Subject to section 2613 of this title, an eligible employee
    shall be entitled to a total of 12 workweeks of leave
    during any 12-month period for one or more of the
    following:
      (A) Because of the birth of a son or daughter of the
      employee and in order to care for such son or daugh-
      ter.
      (B) Because of the placement of a son or daughter
      with the employee for adoption or foster care.
10                                               No. 05-4064

      (C) In order to care for the spouse, or a son, daughter,
      or parent, of the employee, if such spouse, son,
      daughter, or parent has a serious health condition.
      (D) Because of a serious health condition that makes
      the employee unable to perform the functions of the
      position of such employee.
Id. § 2612(a)(1). In Hibbs, the Supreme Court was con-
cerned with subpart (C), which is known as the family-leave
provision. Toeller’s case, in contrast, arises under subpart
(D), the self-care provision. We must decide here whether
that makes a difference in the outcome.
  The Supreme Court began its discussion of the FMLA
in Hibbs with the observation that the statute “aims to
protect the right to be free from gender-based discrimina-
tion in the workplace.” 538 U.S. at 728. It went on to
reaffirm that “statutory classifications that distinguish
between males and females are subject to heightened
scrutiny.” Id. Such classifications are valid only if they
serve important governmental objectives and employ
measures that are substantially related to the achieve-
ment of those objectives. Id. Congress had already re-
acted to the long history of laws limiting women’s employ-
ment opportunities with the passage of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a), which the Court
had upheld as a valid exercise of the section 5 power in
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). See 538 U.S. at
729-30. But, the Court observed, “state gender discrimina-
tion did not cease.” Id. at 730. One particular area of
concern, about which Congress had extensive informa-
tion before it passed the FMLA, had to do with the adminis-
tration of leave benefits. One area where discrepancies were
patent had to do with maternity and paternity leaves: 37
percent of surveyed private-sector employers gave mater-
nity leave, but only 18 percent gave paternity leave; the
pattern in the public sector was the same. Id. This
No. 05-4064                                                 11

was explained not by any differential physical needs of men
and women, but rather by “the pervasive sex-role stereotype
that caring for family members is women’s work.” Id. at
731. Congress also had evidence before it that facially
nondiscriminatory leave policies were applied in
a discriminatory fashion, again relying on unexamined
stereotypes about sex roles. See id. at 732. The Court
concluded, based on this extensive record, that “the States’
record of unconstitutional participation in, and fostering of,
gender-based discrimination in the administration of leave
benefits is weighty enough to justify the enactment of
prophylactic § 5 legislation.” Id. at 735.
  Importantly for present purposes, the Court went on to
explain why it had come to the opposite conclusion with
respect to state sovereign immunity in Garrett and Kimel,
which dealt with the ADA and the ADEA, respectively.
Neither disability-based distinctions nor age-based dis-
tinctions, under the Court’s cases, are subject to heightened
scrutiny; instead, both are acceptable if the State has a
rational basis for its classification. See Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432 (1985) (distinctions based
on mental disabilities judged under the rational basis test);
Gregory v. Ashcroft, 501 U.S. 452 (1991) (upholding consti-
tutionality of state law establishing mandatory retirement
age for judges using rational basis test). When the rational
basis test applies, “Congress must identify, not just the
existence of age- or disability-based state decisions, but a
‘widespread pattern’ of irrational reliance on such criteria.”
538 U.S. at 735 (quoting Kimel, 538 U.S. at 90). Kimel and
Garrett found no such showing with respect to either the
ADEA or Title I of the ADA.
  Title II of the ADA was another matter, however, as the
Court’s later decision in Tennessee v. Lane, supra, demon-
strated. Title II is about access to public services. In Lane,
the Court noted that Title II addresses not only irrational
discrimination based on disability, but also the enforcement
12                                                No. 05-4064

of a number of other constitutional guarantees that are
subject to more searching judicial review, such as the right
of access to courts guaranteed by the Due Process Clause of
the Fourteenth Amendment, the right to confront witnesses
assured by the Confrontation Clause of
the Sixth Amendment, and the right to attend court
protected by the First Amendment. 541 U.S. at 522-23.
Explaining why it upheld Title II of the ADA as legislation
that, under those circumstances, validly abrogated the
State’s sovereign immunity, the Court said:
     Congress enacted Title II against a backdrop of perva-
     sive unequal treatment in the administration of state
     services and programs, including systematic depriva-
     tions of fundamental rights. For example, [a]s of 1979,
     most States . . . categorically disqualified ‘idiots’ from
     voting, without regard to individual capacity. The
     majority of these laws remain on the books, and have
     been the subject of legal challenge as recently as 2001.
     Similarly, a number of States have prohibited and
     continue to prohibit persons with disabilities from
     engaging in activities such as marrying and serving
     as jurors. The historical experience that Title II reflects
     is also documented in this Court’s cases, which have
     identified unconstitutional treatment of disabled
     persons by state agencies in a variety of settings . . . .
541 U.S. at 524-25 (footnotes and quotations omitted).
  We are not the first to be asked to decide, in the light of
Hibbs, whether the self-care provision of the FMLA is
another valid abrogation of the State’s sovereign immunity.
Both the Tenth Circuit and the Sixth Circuit have con-
cluded, based on the emphasis the Hibbs Court placed on
the gender-based aspects of the family-care provision and
the lack of an analogous rationale for the self-care provision
that the States cannot be sued under the latter subsection.
See Touvell, 422 F.3d at 400-01; Brockman, 342 F.3d at
No. 05-4064                                               13

1164. Other circuits, the Sixth Circuit pointed out in
Touvell, had found that state sovereign immunity applied
to the FMLA’s self-care provision before Hibbs was decided.
See 422 F.3d at 397 (citing Laro v. New Hampshire, 259
F.3d 1, 17 (1st Cir. 2001); Lizzi v. Alexander, 255 F.3d 128,
136 (4th Cir. 2001); Hale v. Mann, 219 F.3d 61, 69 (2d Cir.
2000)).
  The Tenth Circuit acknowledged in Brockman that
“[t]here is a colorable argument to the effect that the self-
care provision of the FMLA must be viewed as part of the
Act as a whole, and that it would therefore be a valid
abrogation of states’ sovereign immunity.” 342 F.3d at 1164.
The court rejected that reading, however, because it could
not find in the FMLA’s legislative history sufficient evi-
dence that Congress was linking the self-care leave provi-
sions to the elimination of gender discrimination. In reading
the FMLA that way, both the Tenth Circuit and the Sixth
Circuit implicitly decided that the Supreme Court would be
willing to evaluate the statute not only on a title by title
basis, as the Court had done with the ADA in Garrett and
Lane, but on a subsection by subsection basis.
  The message that we derive from the many Supreme
Court decisions in this area is that we should—indeed
must—look at each provision of the law separately, even
though we should also evaluate each provision in con-
text. We note as well that the Supreme Court was care-
ful throughout Hibbs to state that it was deciding a case
about the family-leave part of the FMLA; one would be
hard-pressed to find anything in that opinion hinting that
the ruling extended to all of § 2612(a). If, therefore, the
holding in Hibbs should be extended to the self-care
subsection, we must find comparable justification in the
statute for self-care to that which persuaded the Court for
family-care.
14                                                No. 05-4064

   In fact, there may be reasons why Congress placed the
self-leave provision at the end of the list of permissible
reasons for leave that 29 U.S.C. § 2612(a) sets forth. How,
for example, should pregnancy leave be characterized, when
it is the woman who seeks it? In a sense, of course, it is self-
care, as even in a normal, healthy pregnancy the expectant
mother has personal health needs that are not shared by
her male partner. In a sense, it relates to care of other(s),
since the period immediately after the birth of the child is
consumed not only with the mother’s recovery from preg-
nancy, but also with round-the-clock care of the newborn
baby. The Hibbs Court singled out maternity leave and
paternity leave as an example of dissimilar treatment along
gender lines, apparently because it was focusing on the risk
of stereotypes that assume that only women will be effective
caregivers for new offspring. For that reason, we express no
opinion about the way in which a request for self-care leave
submitted by a pregnant woman, for medical needs associ-
ated with her pregnancy, should be assessed for the purpose
of state sovereign immunity. We note only that pregnancy
discrimination (as a subset of sex discrimination) implicates
a higher level of constitutional scrutiny than disability
discrimination, and hence requires a different analysis.
  On the other hand, although we have not conducted a
statistical survey on the point, it seems obvious that the
great majority of requests for self-care leave occur for
exactly the kind of reason Toeller presented: that is, a
short-term medical need (unrelated to pregnancy) that
the individual has that must be addressed. We know of
no reason why women would be more likely to have this
kind of medical problem than men. Furthermore, whether
we know about it is not the point in the end: what counts is
that we see nothing in either the text or the legislative
history of the FMLA to indicate that Congress found this to
be the case.
No. 05-4064                                                15

                             IV
  For these reasons, we conclude that Toeller cannot
use the self-leave provision of the FMLA, 29 U.S.C.
§ 2612(a)(1)(D), in his suit for money damages against an
arm of the State, because, like Title I of the ADA in Garrett,
his suit cannot rest on section 5 of the Fourteenth Amend-
ment. WDOC, as an arm of the State of Wisconsin, is
entitled to invoke the State’s sovereign immunity in
this case, and thus the district court should have dismissed
Toeller’s lawsuit against it. We therefore REVERSE the
judgment of the district court and REMAND for dismissal of
this action.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-25-06
