                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     November 17, 2016

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

DANIJELA MOJSILOVIC;
ALEKSANDAR MOJSILOVIC,

      Plaintiffs - Appellants,

v.                                                         No. 15-6151

STATE OF OKLAHOMA EX REL. THE
BOARD OF REGENTS FOR THE
UNIVERSITY OF OKLAHOMA,

      Defendant - Appellee,

and

PURE PROTEIN LLC; WILLIAM
HILDEBRAND,

      Defendants.
                         _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                             (D.C. No. 5:14-CV-00886-R)
                       _________________________________

Submitted on the briefs:*

George S. Freedman and Sarah Rowe Clutts, Lester, Spencer Fane, LLP, Edmond,
Oklahoma, for Plaintiffs-Appellants.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Gus H. Buthman and Gauri D. Nautiyal, Office of Legal Counsel, University of
Oklahoma, Norman, Oklahoma; Clyde A. Muchmore and Evan G. E. Vincent, Crowe &
Dunlevy, A Professional Corporation, Oklahoma City, Oklahoma, for Defendant-
Appellee.
                       _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

McKAY, Circuit Judge.
                        _________________________________

      Danijela and Aleksandar Mojsilovic appeal the dismissal of their damages

claim under the Trafficking Victims Protection Reauthorization Act (TVPRA),

18 U.S.C. § 1595, which provides a civil remedy for victims of forced labor. The

Mojsilovics claim the University of Oklahoma, through one of its agents, forced them

to work by threatening their immigration status, but the district court concluded the

University was entitled to sovereign immunity. We exercise jurisdiction under

28 U.S.C. § 1291 and affirm the district court’s judgment.

                                           I

      The Mojsilovics are Serbian scientists recruited and hired by the University of

Oklahoma to serve as research assistants at the University’s Health Sciences Center.

In that capacity, Aleksandar was hired to conduct DNA sequencing and tissue typing

for research and clinical studies; Danijela was hired to make transfectants and tissue

cultures. The Mojsilovics were retained by the University through the H-1B visa

program, and they were supervised by Dr. William Hildebrand, the director of the

medical research laboratory at the Health Sciences Center. Dr. Hildebrand also owns



                                           2
a biotechnology company called Pure Protein, which, through a contractual

arrangement, shares the University’s facilities to perform similar work.

      According to the Mojsilovics, shortly after they were hired, Dr. Hildebrand

demanded that they also work for Pure Protein. He allegedly required them to work

longer hours than permitted by their visa applications, without pay, and threatened to

have their visas revoked if they objected. Dr. Hildebrand became verbally abusive at

times, and because he was authorized to make hiring and firing decisions, the

Mojsilovics claimed they feared he would take action against their immigration status

if they did not comply with his demands.

      The Mojsilovics eventually filed suit, naming the University, Dr. Hildebrand,

and Pure Protein as defendants. In a four-count complaint, they claimed violations of

the TVPRA’s forced labor provision, 18 U.S.C. § 1589, the TVPRA’s human

trafficking provision, id. § 1590, the Fair Labor Standards Act (FLSA), 29 U.S.C.

§ 216(b) (permitting employees to recover for unpaid overtime), and the Oklahoma

Protection of Labor Act (OPLA), Okla. Stat. tit. 40, § 165.9 (permitting employees to

recover for unpaid wages). All claims were premised on Dr. Hildebrand’s threats to

have the Mojsilovics deported if they refused to perform additional work for Pure

Protein without pay. They sought damages under the TVPRA’s civil remedy

provision, 18 U.S.C. § 1595, as well as declaratory and injunctive relief, liquidated

and compensatory damages, costs, and attorney’s fees.

      Defendants filed separate motions to dismiss, which the district court granted

in part and denied in part with respect to Dr. Hildebrand and Pure Protein; those

                                           3
rulings are not implicated in this appeal.1 For its part, the University argued (among

other things) that as a state entity, it was entitled to sovereign immunity. In response,

the Mojsilovics conceded that sovereign immunity barred their FLSA and OPLA

claims. But they argued that sovereign immunity posed no bar to their TVPRA

claims because the statute was enacted under Congress’s Thirteenth Amendment

authority to abolish involuntary servitude. According to the Mojsilovics, the States

surrendered sovereign immunity for claims of involuntary servitude by ratifying the

Thirteenth Amendment. And in any event, they argued, the statutory language of the

TVPRA expressly abrogates sovereign immunity for “[w]hoever” engages in

prohibited conduct, thus manifesting a clear intent to abrogate sovereign immunity of

the States. 18 U.S.C. §§ 1589, 1595. The district court rejected these arguments and

dismissed the Mojsilovics’ claims. This appeal followed.2

                                           II

      We review de novo the district court’s dismissal based on sovereign immunity.

Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). “A foundational

premise of the federal system is that States, as sovereigns, are immune from suits for

damages, save as they elect to waive that defense.” Coleman v. Court of Appeals of

Md., ___ U.S. ___, 132 S. Ct. 1327, 1333 (2012). A well-established exception to

      1
       The surviving claims against Dr. Hildebrand and Pure Protein remain
pending in the district court, which certified its order dismissing the claims against
the University as a final, appealable judgment. See Fed. R. Civ. P. 54(b).
      2
       The Mojsilovics appeal only the dismissal of their forced labor claim under
the TVPRA, not the disposition of their FLSA, OPLA, or human trafficking claims.
See Aplt. Br. at 4 n.1.
                                           4
this principle, however, is that Congress may abrogate the States’ immunity. Id.

“[T]o determine whether Congress has abrogated the States’ sovereign immunity, we

ask two questions: first, whether Congress has unequivocally expressed its intent to

abrogate the immunity, and second, whether Congress has acted pursuant to a valid

exercise of power.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996)

(citation, brackets and internal quotation marks omitted).

      In answering the first question—whether Congress intended to abrogate state

sovereign immunity—we employ a “simple but stringent test: Congress may

abrogate the States’ constitutionally secured immunity from suit in federal court only

by making its intention unmistakably clear in the language of the statute.” Kimel v.

Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (emphasis added) (internal quotation

marks omitted). A general authorization for suit is insufficient to abrogate the States’

sovereign immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985),

superseded by statute, 42 U.S.C. § 2000d-7(a), as recognized in Lane v. Pena,

518 U.S. 187, 198 (1996); accord Blatchford v. Native Vill. of Noatak, 501 U.S. 775,

786 n.4 (1991) (“The fact that Congress grants jurisdiction to hear a claim does not

suffice to show Congress has abrogated all defenses to that claim.”).

      For example, in Coleman, the Court concluded Congress made “unmistakably

clear” its intent to abrogate the States’ immunity by specifying in the language of the

relevant statute that any “public agency” could be sued, defining that term to include

“both the government of a State or political subdivision thereof and any agency of a

State, or a political subdivision of a State.” 132 S. Ct. at 1333 (ellipsis and internal

                                            5
quotation marks omitted). Similarly, in Seminole Tribe, the Court found

“unmistakably clear” evidence that Congress intended to abrogate the States’

immunity because “the State” was identified as the appropriate defendant in a lawsuit

brought under the statute at issue. 517 U.S. at 56-57.

      By contrast, the TVPRA identifies as a criminal defendant in a forced labor

case “[w]hoever” engages in prohibited conduct:

      (a) Whoever knowingly provides or obtains the labor or services of a
      person by any one of, or by any combination of, the following means--

      (1) by means of force, threats of force, physical restraint, or threats of
      physical restraint to that person or another person;

      (2) by means of serious harm or threats of serious harm to that person or
      another person;

      (3) by means of the abuse or threatened abuse of law or legal process; or

      (4) by means of any scheme, plan, or pattern intended to cause the
      person to believe that, if that person did not perform such labor or
      services, that person or another person would suffer serious harm or
      physical restraint,

      shall be punished as provided in subsection (d).

      (b) Whoever knowingly benefits, financially or by receiving anything of
      value, from participation in a venture which has engaged in the
      providing or obtaining of labor or services . . . knowing or in reckless
      disregard of the fact that the venture has engaged in the providing or
      obtaining of labor or services by any of such means, shall be punished
      as provided in subsection (d).

18 U.S.C. § 1589 (emphasis added). Similarly, the TVPRA’s civil remedy provision

establishes a private cause of action against a “perpetrator” or “whoever” violates the

TVPRA:


                                           6
      An individual who is a victim of a violation of this chapter may bring a
      civil action against the perpetrator (or whoever knowingly benefits,
      financially or by receiving anything of value from participation in a
      venture which that person knew or should have known has engaged in
      an act in violation of this chapter) in an appropriate district court of the
      United States and may recover damages and reasonable attorneys fees.

Id. § 1595(a) (emphasis added). But the terms “perpetrator” and “whoever” are not

defined by the statute, and standing alone, these broad terms signal no intent to

abrogate sovereign immunity—certainly not an “unmistakably clear” congressional

intent to do so. See Atascadero, 473 U.S. at 245-46 (concluding that statutory

language creating liability for “any recipient” of federal assistance was not

unmistakably clear intent to abrogate sovereign immunity); see also Fla. Prepaid

Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 631-32 (1999)

(observing that previously undefined statutory language creating liability for

“whoever” violated patent laws failed to abrogate sovereign immunity).

      Nevertheless, the Mojsilovics contend there need not be an unmistakably clear

statement of legislative intent because Congress enacted the TVPRA pursuant to its

Thirteenth Amendment authority to eradicate slavery and involuntary servitude.3 The

Mojsilovics argue that the States surrendered sovereign immunity by ratifying the

Thirteenth Amendment, which confers upon Congress plenary authority to abolish

involuntary servitude, and as a consequence, there is no sovereign immunity for

Congress to abrogate. See Aplt. Br. at 24 (“[T]he abrogation of sovereign immunity

      3
         The Thirteenth Amendment provides that “[n]either slavery nor involuntary
servitude . . . shall exist within the United States, or any place subject to their
jurisdiction.” U.S. Const. amend. XIII, § 1.

                                           7
thus occurs within the Thirteenth Amendment itself, and it is therefore not necessary

for Congress to further state its intent to abrogate the States’ immunity.”).

      But the Mojsilovics’ premise is incorrect: The TVPRA was not enacted under

the Thirteenth Amendment; it was enacted under Congress’s Commerce Clause

powers. See H.R. Rep. No. 108-264(I), at 14 (2003) (“[T]he Committee finds the

authority for [the TVPRA] in article I, section 8 of the Constitution.”); 18 U.S.C.

§ 1591(a) (proscribing sex trafficking “in or affecting interstate or foreign

commerce”); see also Francisco v. Susano, 525 F. App’x 828, 834 n.8 (10th Cir.

2013) (noting that predecessor statute to TVPRA was enacted under Congress’s

Commerce Clause powers); Ditullio v. Boehm, 662 F.3d 1091, 1097 n.4 (9th Cir.

2011) (same). This source of congressional authority is significant because

“Congress may not abrogate the States’ sovereign immunity pursuant to its Article I

power over commerce.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727

(2003); see Seminole Tribe, 517 U.S. at 72-73 (“The Eleventh Amendment restricts

the judicial power under Article III, and Article I cannot be used to circumvent the

constitutional limitations placed upon federal jurisdiction.”). Thus, even if Congress

had intended to abrogate sovereign immunity in the TVPRA, it had no authority to do

so under the Commerce Clause.

      The Mojsilovics’ arguments to the contrary are unavailing. To support their

assertion that the TVPRA was enacted under the Thirteenth Amendment, they cite

congressional findings for the TVPRA’s predecessor statute reflecting the evils of

human trafficking. See Pub. Law 106-386 §§ 102(b)(1), (12), (21) & (22), 114 Stat.

                                            8
1464 (2000). Section 102(b)(1) states that “[t]rafficking in persons is a modern form

of slavery, and it is the largest manifestation of slavery today.” Section 102(b)(12)

actually supports our conclusion that the TVPRA was enacted under the Commerce

Clause, indicating that “[t]rafficking in persons substantially affects interstate and

foreign commerce.” Section 102(b)(21) states that “[t]rafficking of persons is an evil

requiring concerted and vigorous action.” And section 102(b)(22) states that the

Declaration of Independence recognizes the “right to be free from slavery and

involuntary servitude” as inalienable rights. But none of these findings demonstrate

the TVPRA was enacted under the Thirteenth Amendment.4

      The Mojsilovics also contend there need not always be a clear statement of

congressional intent to abrogate sovereign immunity, as the Supreme Court endorsed

in Central Virginia Community College v. Katz, 546 U.S. 356 (2006). Katz analyzed

congressional power under the Bankruptcy Clause to subordinate State sovereign

immunity in bankruptcy proceedings. See id. at 362. In that unique context, the

Court explained, bankruptcy jurisdiction is “principally in rem” and as a consequence

does not usually “interfere with state sovereignty even when States’ interests are

affected.” Id. at 369-70. Yet, to the extent ancillary bankruptcy orders do implicate

sovereign immunity, the evolution of the Bankruptcy Clause indicates the States

      4
        In their reply brief, the Mojsilovics cite a non-binding district court decision,
see John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988, 1003 (S.D. Ind. 2007),
and an unpublished magistrate judge’s report and recommendation, see United States
v. Garcia, No. 02-CR-110S-01, 2003 WL 22938040 (W.D.N.Y. Dec. 2, 2003)
(unpublished), both suggesting the TVPRA was enacted under the Thirteenth
Amendment. These decisions provide little or no supporting analysis, however, and
we find neither decision authoritative.
                                            9
agreed in ratifying the Constitution not to assert their immunity in bankruptcy

proceedings. Id. at 364-70, 378.

      Analogizing to Katz, the Mojsilovics contend the States ceded sovereign

immunity by ratifying the Thirteenth Amendment. But as we have already discussed,

the TVPRA was enacted under the Commerce Clause, which provides no

congressional authority for abrogation. Thus, absent a valid source of constitutional

authority to abrogate sovereign immunity and an unmistakably clear statement of

congressional intent to do so, the district court correctly dismissed the Mojsilovics’

TVPRA claim.

      The judgment of the district court is affirmed.




                                           10
