                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

STATE OF ALASKA, Office of the        
Governor,
                        Petitioner,
               v.                          No. 07-70174
EEOC; UNITED STATES OF                
AMERICA,                                    OPINION
                     Respondents,
MARGARET G. WARD,
                       Intervenor.
                                      
          Petition for Review of an Order of the
United States Equal Employment Opportunity Commission

                 Argued and Submitted
           August 7, 2007—Anchorage, Alaska

                  Filed November 8, 2007

     Before: J. Clifford Wallace, John T. Noonan, and
             Richard A. Paez, Circuit Judges.

                Opinion by Judge Noonan;
              Concurrence by Judge Wallace;
                 Dissent by Judge Paez




                           14707
                  STATE OF ALASKA v. EEOC               14709


                         COUNSEL

Richard W. Postma, Jr., Anchorage, Alaska, for the petitioner.

Stephanie Marcus, Washington, D.C., for the respondents.


                         OPINION

NOONAN, Circuit Judge:

  The State of Alaska, Office of the Governor (the Gover-
nor’s Office) appeals the remand order of the United States
14710              STATE OF ALASKA v. EEOC
Equal Employment Opportunity Commission (the EEOC) in
a suit against the State of Alaska brought by two discharged
members of the Governor’s Office. We hold that the suit is
barred by the Eleventh Amendment and direct its dismissal.

               FACTS AND PROCEEDINGS

   In the election of November 1990, Governor Walter Hickel
ran for reelection with Jack Coghill as his running mate for
Lieutenant-Governor. Hickel and Coghill were elected. In a
gesture to his ideologically-different running mate, Hickel
appointed Margaret Ward (Ward) to be Director of the Office
of the Governor in Anchorage and appointed Lydia Jones
(Jones) to be one of his Special Staff Assistants in the same
office. Both positions were exempt from civil service. Ward’s
responsibilities as set out by her included supervision of “all
operations of Governor’s Anchorage Regional Office, includ-
ing personnel. Promote the goals and agenda of Governor
Hickel and his administration.” Jones’ responsibilities, as set
out in a staff description of the position, included response to
the voluminous correspondence addressed to the governor and
the handling of 350 to 450 telephone calls per day. The Spe-
cial Assistants were expected to give “a friendly ear or help-
ing hand for a constituent” and to be advocates of the
governor’s programs in the legislature or with the public. The
job description concluded: “It is a position of political sensi-
tivity demanding ever-changing priorities and the flexibility
to handle almost any type of problem.”

   During his term of office, Lieutenant-Governor Coghill
took steps to be able to run for governor in the 1994 election.
By midsummer 1993, Ward was believed to be assisting his
forthcoming campaign. The Governor’s Office suspected that
Jones was assisting her. As a consequence of these suspicions,
the Chief of Staff of the Governor’s Office directed the Direc-
tor of Administrative Services to issue a memorandum to all
senior staff in the Governor’s Office. Issued on September 23,
1993, the memo advised the senior staff of the legal limits on
                   STATE OF ALASKA v. EEOC                 14711
any campaign activities by them. On February 10, 1994, Ward
received a warning against continuing her rumored campaign
conduct. The next day, February 11, 1994, Ward reported to
the Governor’s Office that Jones was complaining about sex-
ual harassment. On February 15, 1994, the Governor’s Office
ordered an investigation. On March 11, 1994, Ward and Jones
held a press conference in which they criticized Governor
Hickel. They were at once placed on administrative leave. On
April 22, 1994, when the Governor’s Office investigation was
completed, their employment was terminated because of their
alleged election activities.

   On April 25, 1994, the Governor’s Office was served with
complaints to the EEOC by Jones and Ward. Jones’ complaint
alleged that she had suffered sexual harassment by a male
Special Staff Assistant and that she had been paid less than
her male counterparts because of her gender and her race
(black). Ward alleged that she had suffered sex discrimination
and retaliatory discrimination. Filed as charges under Title
VII of the Civil Rights Act, the charges were classified by the
EEOC as falling under the Government Employee Rights Act
(GERA). The case lay dormant until January 15, 2003.

   Before the EEOC reopened the case, Jones died. Her wid-
ower, Kenneth Miller, alleged that he stepped into her shoes.
The Governor’s Office, pleading immunity under the Elev-
enth Amendment and assorted other defenses, moved for
summary judgment. On January 4, 2005, an Administrative
Law Judge denied summary judgment on the other defenses,
but doubted if he had jurisdiction to rule on immunity under
the Eleventh Amendment and so made no ruling on this
defense, certifying it to the EEOC itself. On December 14,
2006, the EEOC ruled that “an agency will not rule on the
constitutionality of a statute that it is assigned to administer.”
The EEOC remanded the case to the ALJ.

  The Governor’s Office appeals.
14712              STATE OF ALASKA v. EEOC
                         ANALYSIS

   Ordinarily we do not have jurisdiction to review an order
that is not final. Such is the EEOC’s order of remand. But
there are exceptions, and this case is one. See Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 141 (1993) (holding that an order denying a State’s claim
to Eleventh Amendment immunity is an appealable collateral
order). We proceed to examine the merits of the immunity
asserted by the Governor’s Office.

   Amendment XI to the Constitution of the United States,
adopted in 1798, reads: “The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” Almost a century later the Supreme
Court of the United States expanded the extent of the immu-
nity conferred on the States by adding citizens of the same
State to the category of potential plaintiffs disabled from pur-
suing a remedy for a wrong alleged to have been committed
by the State. Hans v. Louisiana, 134 U.S. 1 (1890).

   [1] The Eleventh Amendment textually poses no barrier to
a suit by the United States or an agency of the United States
against a State. But in 2002, it was held that the immunity of
a State “extends beyond the literal text of the Eleventh
Amendment.” Fed. Mar. Comm’n v. South Carolina State
Ports Auth., 535 U.S. 743, 754 (2002). The Supreme Court
remarked that “we cannot imagine” that the Framers would
have found it acceptable to compel a State to answer the com-
plaints of private parties that were channeled through a fed-
eral agency. Id. at 760. The dignity of a State would be
compromised. Id. The EEOC is in no better position than the
Federal Maritime Commission when it presents the complaint
of two private persons.

  [2] Amendment XIV, however, imposes obligations on the
States. Section 5 of the amendment provides: “The Congress
                   STATE OF ALASKA v. EEOC                 14713
shall have the power to enforce, by appropriate legislation, the
provisions of this article.” The Fourteenth thus trumps the
Eleventh if Congress legislates to enforce the Fourteenth and
the legislation is appropriate. The Supreme Court has set
criteria for legislation to meet if the Supreme Court is to judge
the legislation appropriate. The Court requires that Congress
has “unequivocally expressed its intent to abrogate that immu-
nity” and “acted pursuant to a valid grant of constitutional
authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73
(2000).

   In 1972, Congress held extensive hearings on discrimina-
tion in the treatment of the ten million or more employees of
state and local governments. On the basis of these hearings,
the relevant committees found extensive gender and racial
discrimination by the States. See H.R. Rep. No. 92-238
(1971), reprinted in 1972 U.S.C.C.A.N. 2137, and S. Rep.
No. 92-415 (1971). The reported instances of discrimination
appeared to be across the board. No special mention, one way
or the other, was made of highly-placed employees serving in
posts close to the governor of a State. As enacted in 1972, the
Equal Employment Opportunity Act based on the hearings
excluded from its protection elected officers and “any person
chosen by such officer to be on such officer’s personal staff”
and employees “on the policymaking level” or serving the
official as “an immediate adviser with respect to the exercise
of the constitutional or legal powers of the office.” 42 U.S.C.
§ 2000e(f) (1972). The legislative history shows an acute
awareness in the Senate of the undesirability of sweeping
such key persons under the general prohibitions of discrimina-
tion. See Gregory v. Ashcroft, 501 U.S. 452, 491-92 (1991)
(Blackmun, J., dissenting).

   [3] In 1991, the Equal Employment Opportunity Act of
1972 was amended by GERA, 42 U.S.C. §§ 2000e-16a et seq.
GERA wiped out the existing exemption of members of an
elected official’s personal staff, those serving the official on
a policymaking level, and those serving as immediate advis-
14714              STATE OF ALASKA v. EEOC
ers. GERA was enacted with no findings by Congress as to
state practices of discrimination against employees at this
level of government. Without such findings was GERA a pro-
portionate response to an identified evil? If not, GERA failed
to meet the criteria set by the Supreme Court. See City of
Boerne v. Flores, 521 U.S. 507, 520 (1997).

   The EEOC argues that the necessary findings had already
been made in the hearings that preceded enactment of the
Equal Employment Opportunity Act of 1972. The existence
of widespread racial and sexual discrimination in state gov-
ernments had been shown; the policymakers were not distin-
guished as different. If the findings were strong enough to
sustain the Equal Employment Opportunity Act of 1972, they
are, says the EEOC, strong enough to sustain GERA.

   Does this piggyback work? The Governor’s Office denies
that it does. One substantial difficulty is that separate provi-
sions of the same act may have different effects on Eleventh
Amendment immunity. Compare Tennessee v. Lane, 541 U.S.
509 (2004) (holding that Title II of the Americans with Dis-
abilities Act (ADA) validly abrogated state immunity as to
cases involving the right of access to the courts) with Bd. of
Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001)
(holding that Title I of the ADA did not validly abrogate state
immunity as to the disabled alleging employment discrimina-
tion on account of their disability); see also Garrett, 531 U.S.
at 360 n.1 (“We are not disposed to decide the constitutional
issue whether Title II [of the ADA], which has somewhat dif-
ferent remedial provisions from Title I [of the ADA], is
appropriate legislation under § 5 of the Fourteenth Amend-
ment . . .”). What matters is the effect on Eleventh Amend-
ment immunity that a particular provision has, not whether it
amends or is part of another piece of legislation.

  The Supreme Court has held that the Family and Medical
Leave Act (FMLA) validly abrogated Eleventh Amendment
immunity in part because, “of particular importance to the
                  STATE OF ALASKA v. EEOC                 14715
States, the FMLA expressly excludes from coverage state
elected officials, their staffs, and appointed policymakers.”
Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 739
(2003). Hibbs suggests that GERA’s expansion of the class of
covered employees changes the Eleventh Amendment analy-
sis.

  In the course of holding that the Age Discrimination in
Employment Act did not disturb the immunity of Missouri’s
age limitation on judicial office, the Supreme Court observed:

    “It is obviously essential to the independence of the
    States, and to their peace and tranquility, that their
    power to prescribe the qualifications of their own
    officers . . . should be exclusive, and free from exter-
    nal interference, except so far as plainly provided by
    the Constitution of the United States.” Taylor v.
    Beckman, 178 U.S. 548, 570-571, 44 L. Ed. 1187, 20
    S. Ct. 890 (1900). See also Boyd v. Nebraska ex rel.
    Thayer, 143 U.S. 135, 161, 36 L. Ed. 103, 12 S. Ct.
    375 (1892) (“Each State has the power to prescribe
    the qualifications of its officers and the manner in
    which they shall be chosen”).

Gregory, 501 U.S. at 460.

   [4] In 1972, Congress thought of state policymakers as dif-
ferent from other state employees, and so Congress specifi-
cally excluded them from coverage. The exclusion is at least
an indication that the hearings did not establish an existing
evil in the selection and retention of a governor’s close asso-
ciates. Nothing in the record shows that a pattern of gender
discrimination as to a governor’s staff, advisers, and policy-
makers existed in 1991 when GERA was enacted. The
absence of such evidence is critical. Very few modern gover-
nors, it may fairly be assumed unless the contrary were
shown, would intentionally discriminate on the basis of gen-
der or race in choosing key advisers, and very few modern
14716              STATE OF ALASKA v. EEOC
governors who did discriminate would be likely to keep their
office. It would be guesswork, unsupported by the record, to
suppose that a widespread pattern of intentional discrimina-
tion on account of gender or race existed among the fifty gov-
ernors of the states as they selected staff assisting them in the
exercise of their office.

   [5] No modern governor could run his government without
the assistance of the sort provided in Alaska by the Director
of the Governor’s Office in Anchorage and by the Special
Staff Assistants. Being a governor is not a one-person job.
The governor acts by his policymaking assistants. To treat
these assistants as subject to federal legislation is tantamount
to holding that the highest elected official in a state is bound
by GERA. We do not believe that GERA is a proportionate
response to a widespread evil identified as the predicate of
this legislation. Accordingly, we grant the Governor’s
Office’s appeal and remand to the EEOC with directions to
dismiss the suit.

  Remanded to the EEOC with directions to dismiss the suit.



WALLACE, Circuit Judge, concurring:

   The dissent reads like a law review outline of relevant law
but it makes an assumption I cannot accept. I therefore concur
in Judge Noonan’s opinion.

   In 1972, Congress made findings showing widespread dis-
crimination among state employees. The proposed legislation,
however, was amended to exclude certain high level employ-
ees. What can we know based on this fact?

   What we know is that there was a record of discrimination
in state employment generally but that Congress voted not to
                   STATE OF ALASKA v. EEOC                 14717
extend the statute’s coverage to certain high level state
employees.

   What the dissent assumes is that this was done for purely
political reasons based on only a few representatives’ con-
cerns about state rights. It is true that two senators asserted
this argument in support of the amendment. But that does not
tell us the intent of hundreds of other lawmakers at the time
of their votes.

   This is the problem with basing assumptions on legislative
history. As Justice Scalia has persuasively written:

       “[T]he use of legislative history . . . . is much
    more likely to produce a false or contrived legisla-
    tive intent than a genuine one. The first and most
    obvious reason for this is that, with respect to 99.99
    percent of the issues of construction reaching the
    courts, there is no legislative intent, so that any clues
    provided by the legislative history are bound to be
    false. Those issues almost invariably involve points
    of relative detail, compared with the major sweep of
    the statute in question. That a majority of both
    houses of Congress (never mind the President, if he
    signed rather than vetoed the bill) entertained any
    view with regard to such issues is utterly beyond
    belief. For a virtual certainty, the majority was bliss-
    fully unaware of the existence of the issue, much less
    had any preference as to how it should be resolved.”

Antonin Scalia, A Matter of Interpretation: Federal Courts
and the Law 31-32 (Amy Gutmann ed., Princeton University
Press 1997)(emphasis in original).

   The upshot is that we have an amended statute that
excluded a certain segment of state employees from its cover-
age. There is no reliable history other than the face of the stat-
ute. Assumptions and speculation aside, there is no acceptable
14718             STATE OF ALASKA v. EEOC
way of knowing the reason each member of Congress voted.
We know only that Congress chose to exclude a specific
group despite general findings.

   One may well and should applaud the Fourteenth Amend-
ment as a way to attack state discrimination. But it must do
so within constitutional limits. While the Fourteenth Amend-
ment was an important constitutional amendment, it does not
override the basic constitutional doctrine. The founders were
cynical about governmental powers. The Constitution was not
a rights-granting document (other than the right to patent) but
was to limit government — that is, to protect the people from
government. The Fourteenth Amendment does much, but it
does not trump these fundamental safeguards.

   Thus, Congress is not free to set aside “Our Federalism”
beyond what adopted amendments permit. Here, Congress
failed to do what the Constitution requires. Parties supporting
GERA must show that there was a proper record justifying
congressional action. Arguing by pointing to isolated state-
ments in the legislative history that the 1972 exclusion was
based on political concerns—and thereby implying that, those
political concerns aside, Congress could have included high
level state employees—will not do. In 1990, Congress could
have made a record justifying the new expansion of the 1972
Act. This it failed to do. There are limitations even on Con-
gress.

   We do not know why Congress excluded high level state
employees in 1972, and the 1990 Congress cannot simply
shortcut its action by reference to the 1972 Act. It needed to
take the time for hearings to develop an appropriate record. It
is not that Congress cannot pass a statute such as GERA; it
is that it must do so in a prescribed manner. Its failure to do
so here requires the conclusion that the constitutional protec-
tions on state sovereign immunity have not been met. For this
reason, I join the result advanced by Judge Noonan.
                      STATE OF ALASKA v. EEOC                        14719
PAEZ, Circuit Judge, dissenting:

   I would hold that Congress validly abrogated the States’
Eleventh Amendment immunity to private claims for damages
under the Government Employee Rights Act (“GERA”), 42
U.S.C. § 2000e-16a to 16c. I therefore respectfully dissent.
Because the majority decides the Eleventh Amendment
inquiry on narrow grounds, and because I disagree with its
holding, I proceed to address the two predicate inquiries of
the immunity analysis: congressional intent and constitutional
authority. I turn first to congressional intent.1

                       I.   Congressional Intent

   To abrogate the States’ Eleventh Amendment immunity,
Congress must “unequivocally express[ ] its intent to abrogate
that immunity.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73
(2000). In my view, Congress unequivocally expressed such
an intent in GERA.

   As the Supreme Court explained in 1976 in Fitzpatrick v.
Bitzer, Title VII of the Civil Rights Act of 1964 expressly
excluded the States from its purview. 427 U.S. 445, 448-49 &
n.2. The 1972 amendments to Title VII,2 however, “made
clear that [Title VII] was being extended to persons aggrieved
by public employers.” Id. at n.2. With regard to the States, the
1972 amendments extended Title VII’s protections to “em-
ployees subject to the civil service laws of a State govern-
ment, governmental agency or political subdivision.” 42
U.S.C. § 2000e(f). Conversely, the amendments excluded:

      any person elected to public office in any State or
  1
     Because the underlying factual dispute is not at issue in this appeal, I
do not quarrel with the majority’s factual summary. I note, however, that
the EEOC has yet to address the merits of Ward’s and Jones’ claims.
   2
     Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat.
103, 42 U.S.C. § 2000e et seq.
14720                STATE OF ALASKA v. EEOC
      political subdivision of any State by the qualified
      voters thereof, or any person chosen by such officer
      to be on such officer’s personal staff, or an appointee
      on the policy making level or an immediate adviser
      with respect to the exercise of the constitutional or
      legal powers of the office.

Id. The 1972 amendments also changed the definition of “re-
spondent” to include government employers,3 and thereby
expressly subjected the States to private suits for damages by
their employees. See Fitzpatrick, 427 U.S. at 448-49 & n.2;
Okruhlik v. Univ. of Ark., 255 F.3d 615, 623 (8th Cir. 2001).

   Fitzpatrick therefore concluded that “congressional authori-
zation to sue the State as employer” and “abrogate the immu-
nity conferred by the Eleventh Amendment” was “clearly
present” in the 1972 amendments. 427 U.S. at 451-52 (cita-
tion and internal quotation marks omitted); see also Cerrato
v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 976 (9th Cir. 1994)
(“The Supreme Court has held that Congress has abrogated
the Eleventh Amendment with respect to Title VII claims.”).
The Court also held that Congress validly exercised its
authority under § 5 of the Fourteenth Amendment in abrogat-
ing the States’ Eleventh Amendment immunity, because Title
VII as amended was “ ‘appropriate legislation’ for the pur-
pose of enforcing the provisions of the Fourteenth Amend-
ment.” Fitzpatrick, 427 U.S. at 456.

   Fifteen years after Fitzpatrick, Congress enacted GERA as
part of the Civil Rights Act of 1991 (“1991 Act”), extending
Title VII’s protections to the state employees excluded from
the 1972 amendments. The preamble to the 1991 Act states
  3
    See 42 U.S.C. § 2000e(a) (defining “person” to include “governments,
governmental agencies, [and] political subdivisions”); id. § 2000e(b)
(defining “employer” to include, subject to certain conditions and excep-
tions, “a person engaged in an industry affecting commerce”); id.
§ 2000e(n) (defining “respondent” to include, inter alia, “an employer”).
                   STATE OF ALASKA v. EEOC                14721
that it is “[a]n Act to amend” Title VII. Pub. L. No. 102-166,
105 Stat. 1071, 1071 (1991) (emphasis added); see also
Okruhlik, 255 F.3d at 623 (“Although the 1991 Act is a sepa-
rate statutory provision, the preamble makes clear that it was
intended to amend Title VII.”). Likewise, the text of GERA
clarifies that it was intended to amend and extend Title VII.
As originally enacted as Section 321 of the 1991 Act, GERA
was titled “Coverage of previously exempt State employees.”
105 Stat. at 1097 (emphasis added); see also 42 U.S.C.
§ 2000e-16c (GERA statutory provisions, as currently codi-
fied, with same title). GERA’s definition of the covered state
employees is also virtually identical to the text of the 1972
amendments that excluded these employees:

    [T]his title shall apply with respect to employment of
    any individual chosen or appointed, by a person
    elected to public office in any State or political sub-
    division of any State by the qualified voters thereof
    —

         (1) to be a member of the elected official’s
         personal staff;

         (2) to serve the elected official on the
         policymaking level; or

         (3) to serve the elected official as an imme-
         diate advisor with respect to the exercise of
         the constitutional or legal powers of the
         office.

42 U.S.C. § 2000e-16c(a). As the Tenth Circuit explained in
Board of County Commissioners, Fremont County, Colorado
v. EEOC (“Fremont County”): “In 1991, Congress enacted
GERA, and extended protections against discrimination to
previously exempt state employees. In so doing, Congress
echoed the exclusionary language of Title VII, specifically
extending protections against discrimination . . . to previously
14722              STATE OF ALASKA v. EEOC
exempt high-level state employees.” 405 F.3d 840, 844 (10th
Cir. 2005); see also Brazoria County, Tex. v. EEOC, 391 F.3d
685, 689-90 (5th Cir. 2004) (explaining that the GERA provi-
sion that prohibits discrimination on the basis of race or sex,
42 U.S.C. § 2000e-16b(a)(1), uses language identical to and
expressly incorporates the meaning of the Title VII section
that protects most federal employees, id. § 2000e-16).

   For these reasons, at least one of our sister circuits has
determined that GERA should be understood as amending and
extending Title VII. See Fremont County, 405 F.3d at 849
(“GERA was the last step in the sequence of broadening Title
VII to provide protections to state employees . . . . In passing
the 1972 Title VII amendments and continuing through
GERA as part of the Civil Rights Act of 1991, Congress pro-
vided an expanding class of state employees with what Con-
gress    found     were     necessary     protections      from
discrimination.”).

   In light of these considerations, there can be no serious
doubt that Congress expressed its unequivocal intent in
GERA to abrogate the States’ Eleventh Amendment immu-
nity. Because the 1991 Act and GERA effectively amended
Title VII and extended its protections to certain previously
excluded state employees, Congress, in my view, must have
intended GERA to incorporate the 1972 amendments’ express
inclusion of state employers as possible respondents to private
Title VII claims for damages and the Supreme Court’s 1976
holding that the 1972 amendments therefore validly abrogated
the States’ Eleventh Amendment immunity. Cf. Fremont
County, 405 F.3d at 845 (“We assume that Congress knows
the law and legislates in light of federal court precedent.”).

   The Eighth Circuit’s decision in Okruhlik strongly supports
this conclusion. In Okruhlik, the court rejected the defendant
state university’s argument that “claims of disparate treatment
and disparate impact discrimination under Title VII . . . are
barred by the Eleventh Amendment . . . because [Congress]
                   STATE OF ALASKA v. EEOC                14723
did not make an unmistakably clear expression of its intent to
[abrogate the States’ Eleventh Amendment immunity] in the
1972 Act or in the 1991 Act.” 255 F.3d at 621-22. As the
Eighth Circuit explained: “Subsequent to Fitzpatrick, this
court has consistently held that the 1972 and 1991 Acts abro-
gated the Eleventh Amendment. Other circuits have reached
the same conclusion based on Fitzpatrick.” Id. at 622 (cita-
tions omitted) (citing, inter alia, this court’s holding in Cer-
rato).

   Although the Eighth Circuit did not specifically address the
GERA provisions of the 1991 Act, it held that Congress mani-
fested an unequivocal intent to abrogate the States’ Eleventh
Amendment immunity as to other provisions of the Act. In
rejecting the Eleventh Amendment challenge, the court did so,
not because these other provisions standing alone expressly
provided that the States were subject to private claims for
damages, but because Congress intended these provisions to
amend and therefore be read in conjunction with Title VII and
the 1972 amendments. See Okruhlik, 255 F.3d at 623
(“Although the 1991 amendments do not define ‘respondent,’
the definition of respondent in Title VII includes state
employers.”). Likewise here, reading GERA and Title VII in
pari materia, Congress unequivocally expressed its intent to
abrogate the States’ Eleventh Amendment immunity: GERA
extends Title VII to allow previously exempt state employees
to pursue private claims for damages against their employers,
and Title VII expressly provides that state employers can be
defendants to such claims and therefore abrogates the States’
sovereign immunity.

   Even examining GERA independent of Title VII, the text
of the statute standing alone unequivocally establishes that
Congress intended for the States to be defendants to private
claims for damages. GERA provides for compensatory but
not punitive damages as a remedy for covered “State employ-
ees” intentionally discriminated against by any “personnel
actions affecting [them].” 42 U.S.C. § 2000e-16b(a)-(b). In
14724                STATE OF ALASKA v. EEOC
theory, there are two possible defendants to such claims: (1)
the States; and (2) the individual state agents who engaged in
the discriminatory behavior. At the time Congress enacted
GERA, however, all but one of the Circuits to address the
issue had held that under Title VII’s definition of “employer,”
individual defendants could not be held liable for damages.4
Compare Busby v. City of Orlando, 931 F.2d 764, 772 (11th
Cir. 1991) (“Individual capacity suits under Title VII are . . .
inappropriate.”), Padway v. Palches, 665 F.2d 965, 968 (9th
Cir. 1982) (“The individual defendants cannot be held liable
for back pay.”), Clanton v. Orleans Parish Sch. Bd., 649 F.2d
1084, 1099 (5th Cir. 1981) (same), and Monell v. Dep’t of
Soc. Servs., 532 F.2d 259, 261 (2d Cir. 1976), rev’d on other
grounds, 436 U.S. 658 (1978) (same), with Paroline v. Unisys
Corp., 879 F.2d 100, 104 (4th Cir. 1989), vacated in part on
other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc) (holding
the opposite).

   Although GERA does not define “employer,” Congress
must have intended, given this significant circuit court prece-
dent and the similarities between GERA and Title VII, for
there to be no individual liability under GERA either. Conse-
quently, the only possible defendants to private claims for
damages under GERA are the States. GERA’s damages rem-
edy would therefore be a nullity if Congress had not intended
to abrogate the States’ Eleventh Amendment immunity,
because covered state employees could not file claims for
damages against anyone. This limitation on potential defen-
dants distinguishes the present case from Dellmuth v. Muth,
491 U.S. 223 (1989), where the Supreme Court held that Con-
gress did not express its unequivocal intent in the Education
of the Handicapped Act to abrogate the States’ Eleventh
Amendment immunity. There, the Court held that in light of
the statutory text, it was only a “permissible inference” that
  4
   The decisions prior to 1991 address only back pay because compensa-
tory damages were unavailable prior to the 1991 Act. See Miller v. Max-
well’s Int’l Inc., 991 F.2d 583, 587 n.2 (9th Cir. 1993).
                    STATE OF ALASKA v. EEOC              14725
States would be defendants to private claims for damages. Id.
at 232 (emphasis added). Here, to the contrary, it is a neces-
sary inference that States would be defendants to private
claims for damages, because States are the only possible
defendants to such claims. It would be absurd to imagine that
when Congress expressly provided for these claims, it did not
intend for there to be a responsible party against whom relief
could be awarded.

   For all of the above reasons, I would hold that when Con-
gress enacted GERA as part of the 1991 Act, it unequivocally
intended to abrogate the States’ Eleventh Amendment immu-
nity.

              II.   Valid Exercise of § 5 Power

   To abrogate the States’ Eleventh Amendment immunity,
Congress must also “act[ ] pursuant to a valid grant of consti-
tutional authority.” See Tennessee v. Lane, 541 U.S. 509, 517
(2004) (internal quotation marks omitted). As the Supreme
Court has explained, Congress “can abrogate a State’s sover-
eign immunity when it does so pursuant to a valid exercise of
its power under § 5 of the Fourteenth Amendment to enforce
the substantive guarantees of that Amendment.” Id. at 518.
Further, Congress “must have a wide berth in devising appro-
priate remedial and preventative measures for unconstitutional
actions” that violate the Fourteenth Amendment. Id. at 520;
see also Kimel, 528 U.S. at 80-81 (“It is for Congress in the
first instance to determine whether and what legislation is
needed to secure the guarantees of the Fourteenth Amend-
ment, and its conclusions are entitled to much deference.”
(alteration and internal quotation marks omitted)).

   Congress cannot, however, substantively redefine Four-
teenth Amendment rights in exercising its § 5 authority. See
Kimel, 529 U.S. at 81; see also Lane, 541 U.S. at 520
(“Congress must have wide latitude in determining where [the
line between remedial legislation and substantive redefinition
14726                 STATE OF ALASKA v. EEOC
of Fourteenth Amendment rights] lies. But . . . the distinction
exists and must be observed.” (citation and internal quotation
marks omitted)). The Court has set forth a test to observe this
distinction: “Section 5 legislation is valid if it exhibits ‘a con-
gruence and proportionality between the injury to be pre-
vented or remedied and the means adopted to that end.’ ”
Lane, 541 U.S. at 520 (quoting City of Boerne v. Flores, 521
U.S. 507, 520 (1997)). In turn, the Court applies a three-step
analysis to determine whether legislation is “congruent and
proportional.”

   The first step of the analysis is “to identify the constitu-
tional right or rights that Congress sought to enforce when it
enacted” the legislation. Id. at 522; see also Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001) (“The first
step in applying these now familiar principles is to identify
with some precision the scope of the constitutional right at
issue.”). Here, in enacting the relevant GERA provisions,
Congress sought to exercise its § 5 power to protect the rights
of certain state employees under the Equal Protection Clause
of the Fourteenth Amendment to be free from discrimination
on the basis of race or sex.5

   The second step in the analysis is to determine whether the
legislation validly enforces these constitutional rights, “a
question that must be judged with reference to the historical
experience which [the legislation] reflects.” Lane, 541 U.S. at
523 (internal quotation marks omitted). As the Court
explained in Garrett, “[o]nce we have determined the metes
and bounds of the constitutional right in question, we examine
whether Congress identified a history and pattern of unconsti-
tutional . . . discrimination.” 531 U.S. at 368. In enacting
GERA to provide a remedy to state employees who experi-
  5
    Although GERA also protects against discrimination on the basis of
religion, age, and disability, we do not address these provisions here, as
we must identify with “some precision,” Garrett, 531 U.S. at 365 (empha-
sis added), the constitutional rights at issue.
                  STATE OF ALASKA v. EEOC                14727
ence race and gender discrimination, Congress did not need
extensive evidence of such discrimination, because race and
gender-based classifications are subject to strict and height-
ened scrutiny respectively. See Lane, 541 U.S. at 528-29
(“We explained that because the [Family Medical Leave Act
(‘FMLA’)] was targeted at sex-based classifications, which
are subject to a heightened standard of judicial scrutiny, ‘it
was easier for Congress to show a pattern of state constitu-
tional violations’ than in Garrett or Kimel, both of which con-
cerned legislation that targeted classifications subject to
rational-basis review.” (quoting Nev. Dep’t of Human Res. v.
Hibbs, 538 U.S. 721, 735-37 (2003))). Indeed, in holding that
there was not sufficient evidence of age-based discrimination
for Congress to validly abrogate the States’ sovereign immu-
nity under the Age Discrimination in Employment Act
(“ADEA”), Kimel emphasized that the right at issue did not
involve race or gender-based classifications:

    Age classifications, unlike governmental conduct
    based on race or gender, cannot be characterized as
    so seldom relevant to the achievement of any legiti-
    mate state interest that laws grounded in such con-
    siderations are deemed to reflect prejudice and
    antipathy. Older persons, again, unlike those who
    suffer discrimination on the basis of race or gender,
    have not been subjected to a history of purposeful
    unequal treatment.

528 U.S. at 83 (emphases added) (citation and internal quota-
tions marks omitted).

   In light of this standard, I would hold that the evidence
before Congress was more than sufficient for Congress to
exercise its § 5 authority to enact GERA and abrogate the
States’ Eleventh Amendment immunity. As discussed above,
the 1991 Act and GERA extended Title VII’s protections to
certain previously excluded state employees. In enacting
GERA, Congress was therefore entitled to rely on the exten-
14728             STATE OF ALASKA v. EEOC
sive evidence from when it enacted the 1972 amendments of
widespread employment discrimination by the States on the
basis of race and sex. See Fremont County, 405 F.3d at 848
(“[B]ecause GERA’s language concerning previously exempt
state employees is identical to that in Title VII’s exclusion,
we may accord substantial weight to the legislative history of
the cognate Title VII provision in construing [GERA].”).

   Specifically, in assessing the evidence before it in 1972,
Congress found that “widespread discrimination against
minorities exists in State and local government employment,
and that the existence of this discrimination is perpetuated by
the presence of both institutional and overt discriminatory
practices.” H.R. Rep. No. 92-238, at 19 (1971), reprinted in
1972 U.S.C.C.A.N. 2137, 2152. Congress also found that
“employment discrimination in State and local governments
is more pervasive than in the private sector,” and explained
that:

    The expansion of Title VII coverage to State and
    local government employment is firmly embodied in
    the principles of the Constitution of the United
    States. The Constitution has recognized that it is
    inimical to the democratic form of government to
    allow the existence of discrimination in those
    bureaucratic systems which most directly affect the
    daily interactions of this Nation’s citizens.

Id. at 2152, 2154. As the Tenth Circuit therefore concluded in
Fremont County, rejecting a Tenth Amendment challenge to
GERA: “In passing the 1972 Title VII amendments and con-
tinuing through GERA as part of the Civil Rights Act of 1991,
Congress provided an expanding class of state employees
with what Congress found were necessary protections from
discrimination.” 405 F.3d at 849 (emphasis added).

  Supreme Court decisions further recognize that race and
gender-based employment discrimination by the States per-
                   STATE OF ALASKA v. EEOC                  14729
sisted at the time Congress enacted GERA. As the Court
explained in Hibbs in 2003: “It can hardly be doubted that . . .
women still face pervasive . . . discrimination . . . in the job
market. According to evidence that was before Congress
when it enacted the FMLA [in 1993], States continue to rely
on invalid gender stereotypes in the employment context
. . . .” 538 U.S. at 730 (alteration, citation, and internal quota-
tion marks omitted). The Court has said the same of work-
place discrimination on the basis of race. See Kimel, 528 U.S.
at 83 (“[T]hose who suffer discrimination on the basis of race
. . . have . . . been subjected to a history of purposeful unequal
treatment.” (internal quotation marks omitted)).

   The majority concludes, however, that this evidence of race
and gender-based discrimination by the States was insuffi-
cient for Congress to validly exercise its § 5 power in enact-
ing GERA. None of the majority’s reasons are convincing. As
an initial matter, insofar as the majority suggests that GERA’s
extension of Title VII’s protections to elected state officials
and their staffs is bad policy, such policy considerations are
of course irrelevant to our legal inquiry. It was for Congress
alone to decide whether these employees should be protected
under Title VII.

   The majority also infers from Congress’ decision to
exclude from the 1972 amendments the state employees now
covered by GERA, that the 1972 “hearings did not establish
an existing evil” of state discrimination against these employ-
ees. This inference, however, is contrary to the congressional
record, which suggests that Congress exempted these state
employees because certain Senators were concerned about
intruding on state rights, not because there was an absence of
evidence of discrimination against these employees. As the
Tenth Circuit explained in Fremont County:

    In the floor debates on the extension of Title VII pro-
    tections to state employees, Senator Ervin introduced
    an amendment to exempt those state employees who
14730                  STATE OF ALASKA v. EEOC
      were chosen by elected officials or who were close
      personal advisors to elected officials. In the ensuing
      debates Senator Allen decried federal government
      encroachment on the powers of local government
      that would result. To accommodate these Tenth
      Amendment concerns, when Congress extended
      Title VII protections to state employees in 1972 it
      exempted high-level state employees in recognition
      of the federalism concerns encompassed in their
      inclusion. It similarly rejected coverage for congres-
      sional employees at that time.

405 F.3d at 848-49 (citations and footnotes omitted) (citing
118 Cong. Rec. 1677, 4096-97, 4483, 4494 (1972)).6

   Indeed, as the majority recognizes, when Congress found
extensive evidence of race and gender-based discrimination
by the States in 1972, “the reported instances of discrimina-
tion appeared to be across the board.” In holding that this
widespread evidence of workplace discrimination by the
States is not sufficient evidence of discrimination against the
particular state employees covered by GERA, the majority
parses it more finely than the Supreme Court and our sister
circuits have found appropriate. Notably, although the
Supreme Court has generally required evidence of constitu-
tional violations by the States, not just private parties, it has
otherwise found evidence of a wide variety of constitutional
violations relevant to the Eleventh Amendment inquiry. See
Lane, 541 U.S. at 527 n.16 (“[O]ur cases have recognized that
evidence of constitutional violations on the part of nonstate
governmental actors is relevant to the § 5 inquiry.” (emphasis
added)); id. (noting that “the evidence before the Congress
  6
   See also 118 Cong. Rec. 4494 (statement of Sen. Allen) (“If it is so
good for the States, why should it not be equally good for [congressional]
employees . . . . I do not feel that the law should be applicable to the
States, . . . this is just another instance of the further encroachment by the
Federal Government on the powers of local government.”).
                   STATE OF ALASKA v. EEOC                14731
that enacted the FMLA,” which Hibbs determined was suffi-
cient to abrogate Eleventh Amendment immunity, “related
primarily to the practices of private-sector employers and the
Federal Government” and “in fact contained little specific evi-
dence of a pattern of unconstitutional discrimination on the
part of the States”).

   As the Eighth Circuit has explained, the Supreme Court
“has generally disallowed remedial legislation founded in
Congress’s power under Section 5 of the Fourteenth Amend-
ment in instances where Congress failed to establish and iden-
tify the general problem that the legislation was intended to
ameliorate.” Maitland v. Univ. of Minn., 260 F.3d 959, 965
n.5 (8th Cir. 2001) (discussing City of Boerne, 521 U.S. at
530-32, and Kimel, 528 U.S. at 83-86). Conversely, at least
where, as here, the remedial legislation protects against dis-
crimination on the basis of classifications subject to height-
ened or strict scrutiny, and the evidence before Congress
established a history of discrimination by the States on the
basis of these classifications, the Court has not invalidated
such legislation on the ground that the evidence was not
exactly or explicitly tailored to the harms that Congress
sought to remedy.

   Thus, our sister circuits have consistently rejected Eleventh
Amendment challenges to specific Title VII protections even
where the 1972 findings did not explicitly address the exact
type of discrimination at issue. The Eighth and Tenth Circuits,
for instance, have upheld Title VII retaliation claims against
Eleventh Amendment challenges even though “Congress did
not specifically note in the legislative record a widespread
pattern of retaliatory discharge by the states.” Warren v. Pre-
jean, 301 F.3d 893, 899 (8th Cir. 2002); see also Crumpacker
v. Kans. Dep’t of Human Res., 338 F.3d 1163, 1170 (10th Cir.
2003). As the Tenth Circuit explained:

    The State argues that, while Congress may have
    identified a pattern of unconstitutional gender dis-
14732              STATE OF ALASKA v. EEOC
    crimination by the states, it failed to identify a pat-
    tern of retaliatory conduct by the states. This court,
    however, need not parse the legislative findings with
    regard to Title VII as finely as the State suggests. . . .
    To properly enact legislation under its § 5 authority,
    Congress need not identify a pattern of each form of
    gender discrimination in the workplace by the states.
    Rather, Congress need only identify a history and
    pattern of unconstitutional behavior on the part of
    states. Here, Congress clearly identified a pattern of
    unconstitutional employment discrimination on the
    basis of gender by the states.

Crumpacker, 338 F.3d at 1170 (alteration, citations, and inter-
nal quotation marks omitted).

   Similarly, in Maitland, the Eighth Circuit rejected the
defendants’ contention “that Congress failed to identify a his-
tory and pattern of unconstitutional employment discrimina-
tion by the States against men when it enacted and amended
Title VII.” 260 F.3d at 964 (emphasis added). As the court
concluded, the Constitution does not require “a parsing of the
legislative findings or review of the ‘proportionality and con-
gruity’ of remedies to determine whether the Eleventh
Amendment bar also has been removed with respect to Title
VII actions by men.” Id. at 965. Applying the reasoning of
these decisions here, the evidence before Congress of wide-
spread race and gender-based employment discrimination by
the States was sufficient to support its enactment of GERA,
because Congress did not need to make explicit findings with
regard to the particular subset of state employees covered by
GERA.

   In sum, given the deference we owe to Congress when it
exercises its § 5 authority, it was entitled in enacting GERA
to rely on the extensive evidence from 1972 of widespread
race and gender-based discrimination by the States against
their employees. Further, because Congress’ 1972 decision to
                     STATE OF ALASKA v. EEOC                      14733
exempt the state employees now covered by GERA appears
to have been based not on a lack of evidence of discrimination
but on political considerations, and because neither the
Supreme Court nor our sister circuits have parsed more finely
evidence of state constitutional violations, we must infer that
the across the board findings of employment discrimination
by the States encompassed these state employees.7

   Finally, the majority contends that even if the evidence of
discrimination was sufficient as of 1972, “[n]othing in the
record shows that a pattern of gender discrimination as to a
governor’s staff, advisers, and policymakers existed in 1991
when GERA was enacted.” As discussed above, see supra at
14728-29, however, Supreme Court decisions recognize that
the discrimination Congress found in 1972 persisted at the
time Congress enacted GERA. See also H.R. Rep. No. 102-
40(II), at 5 n.4 (1991), reprinted in 1991 U.S.C.C.A.N. 694,
698 (Congress declaring that, “[i]n support of the 1972
amendments to extend Title VII state and local governments,”
it had “reaffirmed that employment discrimination was perva-
sive, complex and rooted in ‘employment systems’ and ‘vari-
ous institutional devices.’ ”); 1991 Act, Pub. L. No. 102-166,
105 Stat. at 1071 (Congress stating that “additional remedies
under Federal law are needed to deter unlawful harassment
and intentional discrimination in the workplace”).

  The third and final step in the “congruent and proportional”
analysis is to determine whether the § 5 legislation “is an
appropriate response to [the] history and pattern of unequal
  7
   The majority argues that GERA cannot “piggyback” on Congress’
findings from the 1972 amendments. The historical record does not sup-
port this colorful characterization of the EEOC’s position. The EEOC con-
tends that we should infer that Congress’ finding of widespread
employment discrimination by the States in 1972 encompassed the subset
of state employees covered by GERA. I agree with the EEOC that when
Congress changed its position in 1991 and decided as a policy matter to
cover these previously excluded state employees, it was, in light of the
prior record, entitled to do so.
14734                 STATE OF ALASKA v. EEOC
treatment,” Lane, 541 U.S. at 530—i.e. whether the “rights
and remedies created by the [legislation] against the States”
are congruent and proportional to the constitutional violations.
Garrett, 531 U.S. at 372.

   I would hold that GERA is an appropriate response to the
evidence of employment discrimination by the States. Most
importantly, GERA provides for money damages only against
state employers who “engaged in unlawful intentional
discrimination”— conduct that also directly violates the Equal
Protection Clause. See Okruhlik, 255 F.3d at 626 (“[T]he ele-
ments of a claim of intentional discrimination are essentially
the same under Title VII and the Constitution.”). Thus, con-
trary to the legislation at issue in cases such as Garrett and
Hibbs, GERA does not require the States to provide any sub-
stantive entitlements to their employees beyond what the Con-
stitution requires.8 Cf. Garrett, 531 U.S. at 361 (“[T]he Act
requires employers to make reasonable accommodations to
[disabled individuals] . . . .” (alteration and internal quotation
marks omitted)).

   GERA also imposes other reasonable limits on damages.
By incorporating 42 U.S.C. § 1981a(a), GERA provides the
same damage remedies to the covered state employees that
§ 2000e-16 provides to federal employees, instead of the more
expansive remedies available to private sector employees.9
  8
     For this reason, although Hibbs found that the FMLA was appropriate
legislation in part because it exempted those state employees who are cov-
ered under GERA, the majority’s reliance on Hibbs is misplaced. GERA
is appropriate legislation even though it covers these employees, because,
unlike the FMLA, it subjects state employers to financial burdens only
when the harm suffered by the employee rises to the level of a constitu-
tional violation.
   9
     Congress also provides similar remedies to federal employees who are
similarly situated to the state employees protected by GERA. Specifically,
presidential and congressional employees, who were originally covered
directly under GERA, are now covered by the Presidential and Executive
Office Accountability Act, 3 U.S.C. § 401 et seq., and the Congressional
Accountability Act of 1995, 2 U.S.C. § 1301 et seq.
                       STATE OF ALASKA v. EEOC                        14735
Specifically, GERA precludes punitive damages and caps
compensatory damages at between $50,000 and $300,000,
depending on the size of the state employer. See 42 U.S.C.
§ 1981a(b)(1), (b)(3). Also, prior to acting on a complaint by
a state employee, the EEOC must refer the complaint to any
state or local fair employment practices agency authorized to
grant or seek relief from the alleged discrimination. Id.
§ 2000e-16c(b)(2) (incorporating § 2000e-5(d)). Upon request
by the state or local agency, the EEOC must then provide the
agency “a reasonable time, but not less than sixty days . . . to
act under such State or local law to remedy the practice
alleged.”10 Id. § 2000e-5(d).

   Accordingly, GERA is congruent and proportional to the
evidence of the States’ violations of its employees’ Fourteenth
Amendment rights to be free from discrimination on the basis
of race or sex. See Lane, 541 U.S. at 431 (“Congress was jus-
tified in concluding that th[e] difficult and intractable problem
[of disability discrimination] warranted added prophylactic
measures . . . . The remedy Congress chose is nevertheless a
limited one.” (alteration and internal quotation marks omit-
ted)); Hibbs, 538 U.S. at 738 (“We also find significant the
many other limitations that Congress placed on the scope of
[the FMLA].”).

                                   ***

   For all of the above reasons, I would hold that Congress
explicitly abrogated the States’ Eleventh Amendment immu-
nity when it enacted GERA, and that the legislation is congru-
ent and proportional to the racial and gender discrimination
that Congress sought to remedy. Accordingly, I would reject
  10
     The EEOC followed these requirements in the instant case by trans-
mitting copies of Ward’s and Jones’ complaints to the Alaska State Com-
mission for Human Rights, which “acknowledge[d] receipt of the
referenced charge[s]” but “indicate[d] [its] intention not to initially inves-
tigate the[m].”
14736           STATE OF ALASKA v. EEOC
Alaska’s Eleventh Amendment challenge, and allow the ALJ
to rule on the merits of the complainants’ claims.
