                                                      F I L E D
                                             United States Court of Appeals
                                                     Tenth Circuit

                                                      DEC 3 1999
                             PUBLISH
                                        PATRICK FISHER
                                             Clerk
            UNITED STATES COURT OF APPEALS
                     TENTH CIRCUIT


UNION PACIFIC RAILROAD
COMPANY and UTAH RAILWAY
COMPANY,

     Plaintiffs-Appellees,

v.

STATE OF UTAH; UTAH STATE
TAX COMMISSION; BEAVER
COUNTY; BOX ELDER COUNTY;
CACHE COUNTY; CARBON
COUNTY; DAVIS COUNTY;
EMERY COUNTY; GRAND
COUNTY; IRON COUNTY; JUAB
COUNTY; MILLARD COUNTY;
MORGAN COUNTY; SALT LAKE
COUNTY; SUMMIT COUNTY;
TOOELE COUNTY; UTAH
COUNTY; WASATCH COUNTY;
WASHINGTON COUNTY; WEBER               Nos. 97-4197
COUNTY; MONTE MUNNS; KAREN                  98-4002
JEPPESEN; MARILYN GRAHAM;
MARK ALTOM; JOANNE
BEHLING; GRACE EASTIN;
MERNA MITCHELL; JEAN
BOWLES; MARY DAY; GLORIA
ANDERSON; LARRY
RICHARDSON; GLEN THOMPSON;
VALERIE LEE; LEONARD ELLIS;
KAROLYN KIRKHAM; ALIS RITZ;
NILA DAYTON, county defendants,

     Defendants,
       and

 W. VAL OVESON; RICHARD B.
 MCKEOWN; JOE B. PACHECO, JR.;
 PAM HENDRICKSON, ALICE
 SHEARER, state defendants,

       Defendants-Appellants.

 -------------------------
 UNITED STATES OF AMERICA,

       Intervener.


                     Appeal from the United States District Court
                               for the District of Utah
                     (D.C. Nos. 97-CV-341-C and 97-CV-419-B)


John C. McCarrey, Assistant Attorney General (Kelly W. Wright, Special
Assistant Attorney General and Michelle Bush, Assistant Attorney General, with
him on the briefs), Salt Lake City, Utah, appearing for Defendants-Appellants.

Robert A. Peterson (Kevin Joseph Simon of Giauque, Crockett, Bendinger &
Peterson with him on the brief), of Giauque, Crockett, Bendinger & Peterson, Salt
Lake City, Utah, appearing for Plaintiffs-Appellees.

Stephanie R. Marcus (Mark B. Stern, Department of Justice, Washington, D.C.,
with her on the brief) of the Department of Justice, Washington, D.C., for
Intervener.


Before SEYMOUR, Chief Judge, BRORBY and HENRY, Circuit Judges.


SEYMOUR, Chief Judge.




                                         -2-
      Union Pacific Railroad Company and Utah Railway Company (the

Railroads) brought separate actions for injunctive and declaratory relief against

the State of Utah, the Utah State Tax Commission and the Tax Commissioners

(State defendants), and various Utah counties and the treasurers of these counties

(County defendants) under the Railroad Revitalization and Regulatory Reform Act

(4-R Act), 49 U.S.C. § 11501 (1994). The Railroads allege that their property has

been assessed substantially in excess of its fair market value for tax purposes

while all other commercial and industrial property in the same tax category is

assessed at less than fair market value, and that this discriminatory treatment

violates section 11501.

      The State defendants in both cases moved to dismiss on the basis of

Eleventh Amendment immunity. The district court ruled in both actions that

section 11501 does not abrogate Eleventh Amendment immunity and granted the

motions to dismiss with respect to the State of Utah and the Utah Tax

Commission. See Union Pac. R.R. Co. v. Utah, 996 F. Supp. 1358, 1362 (D. Utah

1997). 1 The court concluded, however, that the individual members of the Tax

Commission are amenable to suit under Ex parte Young, 209 U.S. 123 (1908), and



      1
        The district court ruling in the Union Pacific Railroad case is published as
cited above. The ruling in the Utah Railway case is not published. See Aplt.
App., vol. II, at 338. Because the two rulings are identical in their disposition of
the Eleventh Amendment issues, we consolidated the appeals.

                                         -3-
denied the motion to dismiss as to those defendants. See 996 F. Supp. at 1362-63;

Aplt. App., vol. II, at 339. Both sides appeal. We hold that section 11501 is a

valid abrogation of Eleventh Amendment immunity and we therefore do not

address the district court’s application of Ex parte Young.



                                         I

                        Eleventh Amendment Immunity

      The Eleventh Amendment states that “[t]he 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.” U.S. C ONST . amend. XI. The

immunity provided by the Eleventh Amendment is not absolute. “A state may

consent to be sued in federal court, or Congress may abrogate sovereign

immunity. To abrogate Eleventh Amendment immunity, Congress must have

‘unequivocally expresse[d] its intent to abrogate the immunity’ and ‘acted

pursuant to a valid exercise of power.’” Migneault v. Peck, 158 F.3d 1131, 1135

(10th Cir. 1999) (internal quotations and citations omitted).

      In a series of recent cases, the Supreme Court has addressed congressional

power to abrogate the immunity provided by the Eleventh Amendment. In

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59, 65-66 (1996), the Court


                                         -4-
concluded that Congress may only abrogate state immunity when it acts pursuant

to the legislative authority granted to it by section 5 of the Fourteenth

Amendment. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court

analyzed the scope of congressional power under section 5, providing the analysis

by which we determine whether a congressional abrogation of Eleventh

Amendment immunity is a valid exercise of that power. In so doing, the Court

articulated several governing principles that we set out below as a framework for

our consideration of the validity of the abrogation contained in section 11501 of

the 4-R Act.

       The Fourteenth Amendment restricts the power of the states by providing

that

       [n]o State shall make or enforce any law which shall abridge the
       privileges or immunities of citizens of the United States; nor shall
       any State deprive any person of life, liberty, or property, without due
       process of law; nor deny to any person within its jurisdiction the
       equal protection of the laws.

U.S. C ONST . amend. XIV, § 1. Congressional power to abrogate state immunity is

contained in section 5, which provides that “[t]he Congress shall have power to

enforce, by appropriate legislation, the provisions of this article.” Id. § 5.

       In considering the interplay of these two provisions and the scope of

Congress’ power under them, the Court initially observed that section 5 is a broad

grant of authority. City of Boerne, 521 U.S. at 517.


                                          -5-
      Whatever legislation is appropriate, that is, adapted to carry out the
      objects the amendments have in view, whatever tends to enforce
      submission to the prohibitions they contain, and to secure to all
      persons the enjoyment of perfect equality of civil rights and the equal
      protection of the laws against State denial or invasion, if not
      prohibited, is brought within the domain of congressional power.

Id. at 517-18 (quoting Ex parte Virginia, 100 U.S. 339, 345-46 (1879)).

Accordingly, the Court reiterated the principle that “[l]egislation which deters or

remedies constitutional violations can fall within the sweep of Congress’

enforcement power even if in the process it prohibits conduct which is not itself

unconstitutional and intrudes into ‘legislative spheres of autonomy previously

reserved to the States.’” Id. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445,

455 (1976)). Moreover, the Court left undisturbed the principle that

congressional action may be upheld under section 5 even when Congress does not

expressly rely on that provision as the source of its abrogation power. See, e.g.,

EEOC v. Wyoming, 460 U.S. 226, 243 n. 18 (1983) 2; see also Fullilove v.


      2
        In holding that Congress need not expressly rely on section 5 for
abrogation to be valid, the Court in EEOC v. Wyoming distinguished Pennhurst
State Sch. v. Halderman, 451 U.S. 1, 16 (1981), in which the Court cautioned that
“we should not quickly attribute to Congress an unstated intent to act under its
authority to enforce the Fourteenth Amendment.” In Pennhurst, the Court had to
determine whether Congress had intended to create substantive rights through
unclear statutory language. Thus, its task was “to divine the meaning of
otherwise ambiguous intent,” in order “to construe a statute, not to adjudge its
constitutional validity.” EEOC, 460 U.S. at 243 n.18. Where, as in EEOC and
the present case, the congressional intent is clear, “[t]he observations in
Pennhurst . . . simply have no relevance to the question of whether . . . Congress
acted pursuant to its powers under § 5.” Id.

                                         -6-
Klutznick, 448 U.S. 448, 478 (1980); Katzenbach v. Morgan, 384 U.S. 641, 650-

51 (1966); L AURENCE H. T RIBE , A MERICAN C ONSTITUTIONAL L AW § 5-4, at 307 n.

6 (2d ed. 1988) (“An otherwise valid exercise of congressional authority is not, of

course, invalidated if Congress happens to recite the wrong clause . . . as the

source of its power--or, indeed, if Congress recites no clause at all.”).

      The Court cautioned, however, “that ‘[a]s broad as the congressional

enforcement power is, it is not unlimited.’” City of Boerne, 521 U.S. at 518

(quoting Oregon v. Mitchell, 400 U.S. 112, 128 (1970) (opinion of Black, J.)).

The Court pointed out that congressional power under section 5 is remedial in

nature, and confers the authority to enforce the Fourteenth Amendment rather

than to define its parameters as a matter of substantive law. Id. at 519. While

recognizing that the line between remedy and substance is not easy to discern, the

Court emphasized that “the distinction exists and must be observed.” Id. at 520.

Accordingly, the Court established several factors to guide an assessment of

whether an abrogation of immunity under section 5 is a valid remedial measure or

an impermissible substantive change in the governing law.

      The Court stated that legislation adopted under the enforcement clause must

be judged with reference to the historical experience it reflects, id. at 525, and

that the “appropriateness of remedial measures must be considered in light of the

evil presented,” id. at 530. In assessing this factor, the Court looked to the


                                         -7-
legislative record before Congress as an indication that the congressional action

taken was necessary and appropriate. The Court noted that lack of evidentiary

support is not conclusive.

      Judicial deference, in most cases, is based not on the state of the
      legislative record Congress compiles but “on due regard for the
      decision of the body constitutionally appointed to decide.” As a
      general matter, it is for Congress to determine the method by which it
      will reach a decision.

Id. at 531-32 (citation omitted).

      Accordingly, the Court also looked to whether the legislation was

proportional to its remedial or preventive object and could thus “be understood as

responsive to, or designed to prevent, unconstitutional behavior.” Id. at 532.

The Court cautioned that the sweep of remedial legislation must be congruent

with and carefully directed to the scope of the unconstitutional conduct it was

enacted to curtail. Id. at 532-34.

      This is not to say, of course, that § 5 legislation requires termination
      dates, geographic restrictions or egregious predicates. Where,
      however, a congressional enactment pervasively prohibits
      constitutional state action in an effort to remedy or to prevent
      unconstitutional state action, limitations of this kind tend to ensure
      Congress’ means are proportionate to ends legitimate under § 5.

Id. at 533.

      In its most recent examination of Congress’ power under section 5, the

Court reiterated and applied its holdings in City of Boerne that “for Congress to

invoke § 5, it must identify conduct transgressing the Fourteenth Amendment’s

                                         -8-
substantive provisions, and must tailor its legislative scheme to remedying or

preventing such conduct.” Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 119 S. Ct. 2199, 2207 (1999). The Court emphasized that

while the lack of legislative history showing that Congress was responding to a

history of constitutional violations is not determinative, “identifying the targeted

constitutional wrong or evil is still a critical part of our § 5 calculus because

‘[s]trong measures appropriate to address one harm may be an unwarranted

response to another, lesser one.’” Id. at 2210 (quoting City of Boerne, 521 U.S. at

530).

        The Court has thus made clear that legislation is more likely to be

considered a valid exercise of Congress’ section 5 authority if it is supported by a

legislative record showing the extent of state conduct violative of the Fourteenth

Amendment, and if it is carefully drawn to target that conduct.



                                          II

                                     The 4-R Act

        With the above general principles in mind, we turn to the validity of the

abrogation of Eleventh Amendment immunity contained in the 4-R Act. The

substantive provision of the Act upon which the Railroads rely provides:

              The following acts unreasonably burden and discriminate
        against interstate commerce, and a State, subdivision of a State, or

                                          -9-
      authority acting for a State or subdivision of a State may not do any
      of them:
                    (1) Assess rail transportation property at a value
            that has a higher ratio to the true market value of the rail
            transportation property than the ratio that the assessed
            value of other commercial and industrial property in the
            same assessment jurisdiction has to the true market
            value of the other commercial and industrial property.
                    (2) Levy or collect a tax on an assessment that
            may not be made under paragraph (1) of this subsection.
                    (3) Levy or collect an ad valorem property tax on
            rail transportation property at a tax rate that exceeds the
            tax rate applicable to commercial and industrial property
            in the same assessment jurisdiction.
                    (4) Impose another tax that discriminates against a
            rail carrier providing transportation subject to the
            jurisdiction of the Board under this part.

49 U.S.C. § 11501(b).

      The abrogation of Eleventh Amendment immunity which the Railroads

contend permits their suit for relief under the Act provides:

             Notwithstanding section 1341 of title 28 [the Tax Injunction
      Act ] and without regard to the amount in controversy or citizenship
          3

      of the parties, a district court of the United States has jurisdiction,
      concurrent with other jurisdiction of courts of the United States and
      the States, to prevent a violation of subsection (b) of this section.
      Relief may be granted under this subsection only if the ratio of
      assessed value to true market value of rail transportation property
      exceeds by at least 5 percent the ratio of assessed value to true
      market value of other commercial and industrial property in the same
      assessment jurisdiction. The burden of proof in determining assessed


      3
        The Tax Injunction Act provides that “[t]he district courts shall not
enjoin, suspend or restrain the assessment, levy or collection of any tax under
State law where a plain, speedy and efficient remedy may be had in the courts of
such State.” 28 U.S.C. § 1341 (1994).

                                         -10-
      value and true market value is governed by State law.

49 U.S.C. § 11501(c).

      To determine whether the above provision is a valid abrogation of state

sovereign immunity, we must determine whether Congress unequivocally

expressed its intent to abrogate, and whether it acted pursuant to a valid exercise

of power. See College Savings Bank, 119 S. Ct. at 2205. The statute contains an

unmistakably clear expression of congressional intent to abrogate state immunity

and the parties do not argue otherwise. We therefore must ascertain whether the

4-R Act is a legitimate exercise of Congress’ section 5 power.

      Following the principles laid down by the Supreme Court, we look first to

Congress’ identification of the unconstitutional state conduct it intended to

remedy in passing the 4-R Act. We begin with the legislative record, which

reveals a substantial history of state discrimination in the taxation of railroad

property. As the Supreme Court has observed, “[a]fter an extended period of

congressional investigation, Congress concluded that ‘railroads are over-taxed by

at least $50 million each year.” Burlington N. R.R. Co. v. Oklahoma Tax

Comm’n, 481 U.S. 454, 457 (1987) (quoting H.R. R EP . N O . 94-725, at 78 (1975)).

The legislative history makes clear that the 4-R Act is intended to eliminate

“discriminatory State and local taxation of common and contract carrier

transportation property . . . as an unreasonable and unjust discrimination against


                                         -11-
. . . interstate commerce.” S. R EP . N O . 91-630, at 1 (1969).

             In essence, the provisions of [section 11501] are designed to
      put an end to the widespread practice of treating for tax purposes the
      property of common and contract carriers on a different basis than
      other property in the same taxing district. In describing the extent of
      discriminatory tax treatment by State and local governments, the
      Doyle report states that ‘despite State laws requiring uniform tax
      treatment, railroads and pipelines are discriminated against as
      compared to other property taxpayers in the same jurisdiction, due in
      large measure to outdated procedures (which are sometimes
      deliberately retained) for assessment of property,’ and went on to
      state that [the committee] had information ‘showing the extent of
      overpayment of railroad ad valorem taxes resulting from the
      assessment of railroad property at a percent of its value that is higher
      than the percent for the assessment of other taxpayer property is to
      the value of such other property’; and that ‘This confirmed the
      findings of this committee that there is a studied and deliberate
      practice of assessing railroad property at a proportion of full value
      substantially higher than other property subject to the same tax rates.

Id. at 2 (emphasis added). The report also states that “[i]n the last 9 years, the

railroads alone have been assessed more than $900 million in discriminatory

taxes.” Id. at 3. Indeed, the legislative history is replete with evidence of

widespread, long-standing and deliberate “discriminatory taxation of interstate

common carrier transportation property.” Id. at 4.

      The legislative history sets out Congress’ findings that the discriminatory

state taxation of interstate railroads runs afoul of the constitution in two ways.

First, it may violate the rational basis requirement of the Equal Protection Clause

by arbitrarily discriminating against a particular taxpayer contrary to “the

applicable State laws or constitutional provisions.” Id. at 7. Second, it may

                                           -12-
violate equal protection by placing interstate carriers in a separate tax category

which, while permitted by state law, impermissibly discriminates against

interstate commerce. Id. 4

      In addition, Congress took note of the procedural barriers which prevented

railroads from obtaining effective relief in state courts. Despite its profound

respect for state sovereignty in taxation matters embodied in the Tax Injunction

Act, Congress passed section 11501 as an explicit exception to that Act, stating

that the effect of the Tax Injunction Act

      has been to close the doors of the Federal courts to carriers affected
      by discriminatory taxation. It has not, however, insured that the
      State courts provide carriers with a plain, speedy, and efficient
      remedy.
             The testimony before the committee indicated that present
      State procedures to challenge discriminatory State tax assessments
      are often difficult, time consuming, and not productive of material
      relief. For example, the Southern Pacific and its rail affiliates were
      required to bring 48 separate suits in 48 separate California superior
      courts to challenge the level of assessments of railroad property by
      48 counties and cities in California.

Id. at 6-7. In sum, our review of the legislative history convinces us that in

passing the 4-R Act, Congress was responding to evidence of a pattern of


      4
        The legislative history observes that in Nashville, Chattanooga & St. Louis
Ry. v. Browning, 310 U.S. 362 (1940), the Supreme Court upheld against an equal
protection challenge the discriminatory taxation of railroads when based on
appropriate state classifications. See S. R EP . N O . 91-630, at 7 (1969). More
recent Supreme Court authority makes clear that arbitrary state discrimination
against interstate commerce violates the Equal Protection Clause. See
Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1984)( discussed in text infra).

                                         -13-
unconstitutional taxation.

      The type of arbitrary state discrimination against interstate railroads in the

assessment and collection of taxes that disturbed Congress was subsequently well

illustrated in Allegheny Pittsburgh Coal Co. v. County Comm’n, 488 U.S. 336

(1989). There, an assessor’s valuation practices resulted in the taxation of

generally comparable property at rates different than those applied to the railroad

in violation of the state constitutional guarantee of equal and uniform taxation.

The Supreme Court held the practice unconstitutional, stating that “‘[t]he equal

protection clause . . . protects the individual from state action which selects him

out for discriminatory treatment by subjecting him to taxes not imposed on others

of the same class.” Id. at 345 (quoting Hillsborough v. Cromwell, 326 U.S. 620,

623 (1946)). Underlying the Court’s decision was the state’s failure to justify a

discriminatory taxing practice as reasonably related to a legitimate state policy

when it violated an expressed state policy of equal and uniform taxation. 5 In this

regard, the Court specifically distinguished Nashville, Chattanooga & St. Louis

Ry. v. Browning, 310 U.S. 362 (1940) (see supra n.4). Id. Thus, Congress’



      5
         In Nordlinger v. Hahn, 505 U.S. 1 (1992), the Supreme Court addressed a
taxation scheme which created dramatic tax disparities for properties of
comparable value. The Court found no equal protection violation, holding that
the classification embodied in state law rationally furthered a legitimate state
interest and that Allegheny Pittsburgh was distinguishable on its facts. Id. at 14-
15.

                                         -14-
concern as set out in the legislative history of the 4-R Act that railroads were the

victims of arbitrary discriminatory taxation in violation of state provisions

requiring equal and uniform taxation clearly supports the enactment of that

legislation under the Equal Protection Clause.

      Moreover, classifications that are permitted by state law but result in

invidious discrimination against interstate commerce are also properly the subject

of remedial action under the Equal Protection Clause. In Metropolitan Life Ins.

Co. v. Ward, 470 U.S. 869 (1984), the Supreme Court traced the “checkered

history” of its “jurisprudence of the applicability of the Equal Protection Clause

to discriminatory tax statutes,” id. at 874, and held that a state violates equal

protection when it imposes “‘more onerous taxes or other burdens on foreign

corporations than those imposed on domestic corporations, unless the

discrimination between foreign and domestic corporations bears a rational relation

to a legitimate state purpose,’” id. at 875 (quoting Western & Southern Life Ins.

Co. v. State Bd. of Equalization, 451 U.S. 648, 667 (1981)). We thus conclude

that the discriminatory taxation of railroads, whether in violation of state

provisions or pursuant to them, is a proper object of Congress’ power under

section 5 to remedy violations of the Equal Protection Clause.

      We turn then to the second part of the inquiry mandated by City of Boerne

and examine whether the provision at issue is tailored to remedying or preventing


                                          -15-
the history of constitutional violations set out above. We begin by observing that,

unlike the statute the Court condemned in City of Boerne, section 11501 of the 4-

R Act is not broad, sweeping legislation that intrudes on state conduct unrelated

to the targeted violation. To the contrary, section 11501 is directed at the

discriminatory assessment and collection of railroad taxes, and provides a remedy

only when such discrimination passes a threshold of five percent. Moreover, the

Act permits only injunctive relief and further provides that state law is to govern

the burden of proof. The remedy is therefore congruent with and in proportion to

the Equal Protection violation. This congruence between the Act’s remedial or

preventative means and the legitimate end it seeks to achieve convinces us that it

is a proper exercise of Congress’ power under section 5. Accordingly, we join

those circuits that have addressed the issue and hold that section 11501 abrogates

Eleventh Amendment immunity. See Wheeling & Lake Erie Ry. Co. v. Public

Utility Comm’n, 141 F.3d 88 (3d Cir. 1998), cert. denied, No. 99-86, 1999 WL

506331, and No. 99-234, 1999 WL 3116; Oregon Short Line R.R. Co. v.

Department of Revenue, 139 F.3d 1259 (9th Cir. 1998).

      In holding to the contrary below, the district court in the Union Pacific

proceeding observed that although Congress need not recite the power under

which it passes legislation abrogating Eleventh Amendment immunity, a court

must not “‘quickly attribute to Congress an unstated intent to act under its


                                         -16-
authority to enforce the Fourteenth Amendment.’” Union Pac., 996 F. Supp. at

1361-62 (quoting Pennhurst State Sch. v. Halderman, 451 U.S. 1, 16 (1981)). As

we have discussed in note 2, however, the Supreme Court subsequently described

this statement as articulating a rule of statutory construction having “no relevance

to the question of whether . . . Congress acted pursuant to its powers under § 5.”

EEOC v. Wyoming, 460 U.S. at 243 n. 18.

      The district court also relied on the statement in Wilson-Jones v. Caviness,

99 F.3d 203, 210 (6th Cir. 1996), that “‘in the absence of explicit comment by

Congress, only efforts to remedy discrimination against a class of persons that

Fourteenth Amendment jurisprudence has already identified as deserving special

protection’ is properly viewed as legislation passed pursuant to § 5.” Union Pac.,

996 F. Supp. at 1362. In so doing, the district court noted that we cited Wilson-

Jones with approval in Aaron v. Kansas, 115 F.3d 813, 817 (10th Cir. 1997). The

court’s reliance on Wilson-Jones is misplaced for several reasons.

      Wilson-Jones addressed whether, under Seminole Tribe, section 5

authorized Congress to abrogate Eleventh Amendment immunity with respect to

violations of the Fair Labor Standards Act. In holding the abrogation invalid, the

court expressly stated that its result might have been different if Congress had

made findings that a particular group needed special protection from

discrimination. See Wilson-Jones, 99 F.3d at 210 n.4. Congress did make such


                                        -17-
findings in enacting the 4-R Act: “Unfortunately, interstate carriers, especially

railroads, are easy prey for State and local tax assessors. Railroads, oil pipelines,

and other interstate carriers are nonvoting, often nonresident, targets for local

taxation, and cannot easily remove their right-of-way and terminals.” S. R EP . N O

91-630, at 3.

      Moreover, while this court did cite Wilson-Jones with approval for one

proposition in Aaron, we did not adopt or approve the statement relied on by the

district court here. Finally, we point out that the Sixth Circuit, in a case

subsequent to its decision in Wilson-Jones, expressly held that “[t]he Supreme

Court’s equal protection jurisprudence is not confined to suspect or quasi-suspect

classifications.” Coger v. Board of Regents, 154 F.3d 296, 305 (6th Cir. 1998).

The court in Coger upheld the abrogation of Eleventh Amendment immunity

found in the Age Discrimination in Employment Act (ADEA), stating that

      “[t]he purpose of the equal protection clause of the Fourteenth
      Amendment is to secure every person within the state’s jurisdiction
      against intentional and arbitrary discrimination.” Thus, the fact that
      age is not a suspect classification does not eliminate the Equal
      Protection Clause as a source authorizing Congress to prohibit age-
      based discrimination; accordingly, Congress did not exceed the scope
      of its Section 5 authority in enacting the 1974 amendments to the
      ADEA.

Id. (citations omitted). Indeed, “[t]he majority of courts to address this argument

have concluded that the mere fact of non-suspect status does not preclude

Congress from legislating on a group’s behalf.” Little Rock Sch. Dist. v. Mauney,

                                         -18-
183 F.3d 816, 826-27 (8th Cir. 1999) (listing cases).

      The district court in the Utah Railway case ruled from the bench in granting

the State defendants’ motion to dismiss on Eleventh Amendment immunity

grounds. The court based its ruling on the fact that Congress invoked the

Commerce Clause in passing the 4-R Act, stating “I don’t find that this is a case

where I am going to work backwards and say, well, Congress could have done it

under the fifth section of the Fourteenth Amendment.” Aplts. Supp. App. at 400.

As we have discussed, however, congressional action may be upheld under

section 5 even when Congress does not expressly rely on that provision as the

source of its power.

      The district court also stated that it was guided by Nordlinger v. Hahn, 505

U.S. 1 (1992), where the Supreme Court rejected an equal protection challenge to

a state system of taxation. The fact that a particular state taxation scheme passes

constitutional muster simply does not inform the inquiry before us. As the

Supreme Court reiterated in City of Boerne, “[l]egislation which deters or

remedies constitutional violations can fall within the sweep of Congress’

enforcement power even if in the process it prohibits conduct which is not itself

unconstitutional and intrudes into ‘legislative spheres of autonomy previously

reserved to the States.’” 521 U.S. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S.

445, 455 (1976)). Accordingly, Congress may include conduct that is itself


                                        -19-
constitutional in remedial legislation and in so doing may trench upon areas such

as taxation that are of particular State concern.

      In sum, we conclude that the abrogation of Eleventh Amendment immunity

set out in section 11501 of the 4-R Act is a valid exercise of Congress’ power

under section 5 of the Fourteenth Amendment to remedy violations of the Equal

Protection Clause. We therefore hold that the State defendants are not entitled to

Eleventh Amendment immunity, and we REVERSE and REMAND to the district

court for further proceedings in light of this opinion.




                                         -20-
