Appeal from the United States District Court for the Southern District of Illinois. No. 77-3051 - J. Waldo Ackerman, Judge.
Before Cummings, Sprecher and Wood, Circuit Judges.
Plaintiff, an honorably discharged veteran, brought this action against the Illinois Office of Education, his former employer, because of its failure to offer him reemployment under the Veterans' Reemployment Rights Act (38 U.S.C. § 2021 Et seq.). Plaintiff was a duplicating operator supervisor in defendant's employ from October 16, 1973, until June 20, 1974, when he resigned to perform military service. On June 29, he entered the U.S. Navy and served until August 11, 1975, when he was honorably discharged.
About a month after his discharge from the Navy, plaintiff applied for reinstatement to his former position but was refused reemployment by defendant on the ground that no position was open at the time. Through the assistance of the Department of Labor, on March 12, 1976, defendant offered to reinstate plaintiff to his former position. He refused that offer because he had secured a position with the Illinois Division of Vocational Rehabilitation in February 1976.
In March 1977, plaintiff brought this suit to recover wages lost as a result of defendant's refusal to hire him pursuant to the provisions of the Veterans' Reemployment Rights Act (the Act).*fn1 The following month the defendant filed a motion to dismiss on the ground that the Act was unconstitutional under the Eleventh Amendment. After considering memoranda of counsel, Judge Ackerman denied the motion to dismiss, relying on Peel v. Florida Department of Transportation, 443 F. Supp. 451 (N.D.Fla.1977).*fn2 A few months thereafter, the district court granted partial summary judgment to plaintiff on the issue of liability. Simultaneously, the court filed a memorandum order incorporating findings of fact and conclusions of law. In the conclusions of law, the court stated that under the Act an employer cannot ordinarily refuse to reinstate a returning veteran on the ground that no current opening exists or that another employee might be bumped or displaced. Relying again on Peel, supra, and also on Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614, and Lichter v. United States, 334 U.S. 742, 781, 68 S. Ct. 1294, 92 L. Ed. 1694, the court held the Eleventh Amendment was no bar to recovery and that plaintiff was entitled to back wages for the six months during which defendant refused to reinstate him, until he refused its eventual offer of proper reinstatement. Plaintiff's actual earnings during that six-month period were to be deducted from his back wages due under the Act.
Two months thereafter, plaintiff filed a motion for summary judgment ordering defendant to pay him $3,072.08 plus interests and costs.*fn3 On May 15, 1978, final judgment was rendered for plaintiff in the sum of $3,072.08 plus interest. This appeal followed. We affirm.
Defendant's chief argument is that the Eleventh Amendment renders the Act unconstitutional insofar as it empowers federal courts to award money damages against state departments. For this proposition, defendant relies mainly upon Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662, and Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389, but we conclude that they are inapplicable.
In 1974, Congress amended the Act to make reemployment rights mandatory for employees of state and local governments where, as here, a veteran leaves the military service after December 3, 1974. 38 U.S.C. § 2022 specifically authorizes the district courts to require an eligible veteran's employer to reinstate him and to compensate him "for any loss of wages or benefits suffered by reason of such employer's unlawful action" (note 1 Supra ). Since the same provision includes a "State or political subdivision thereof" as an employer, it is clear that Congress has authorized returning veterans to sue this kind of defendant for lost wages. Therefore, the judgment below was proper unless the statute is unconstitutional under the Eleventh Amendment.
As seen, 38 U.S.C. § 2022 shows that Congress did intend to subject this kind of defendant to suit, and we hold that it had the power to do so under the war powers contained in Article I, Section 8, Clauses 11-13 of the Constitution. In Case v. Bowles, 327 U.S. 92, 66 S. Ct. 438, 90 L. Ed. 552, the Supreme Court held that the constitutional grant of war powers is sufficient to sustain a statute that might otherwise violate the Tenth Amendment which reserves to the states powers not delegated to the United States by the Constitution.*fn4 The authority of Case was not affected by National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245, on which defendant relies. In National League of Cities, Justice Rehnquist took pains to note that Case was not being overruled and that the scope of Congress' authority under its war powers was not even being addressed. 426 U.S. at 854-85 n. 18, 96 S. Ct. 2465, 49 L. Ed. 2d 245. If the war powers prevail over a state's Tenth Amendment defense, they must equally prevail over a state's Eleventh Amendment defense,*fn5 and the courts that have considered the matter have so held. Peel v. Florida Department of Transportation, supra; Camacho v. Public Service Commission, 450 F. Supp. 231 (D.P.R.1978); Sheely v. Idaho Falls School District No. 91, Civil No. 78-4012 (D.Idaho, decided Nov. 8, 1978); see also Confederated Tribes of Colville v. State of Washington, 446 F. Supp. 1339, 1350 (E.D.Wash.1978; statutory three-judge court); Schaller v. Board of Education, 449 F. Supp. 30, 32-33 (N.D.Ohio 1978).
The reasoning of the Peel, Camacho and Sheely courts is entirely consistent, as discussed in detail below, with other Eleventh Amendment cases (including Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662, and Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389, on which the defendant relies) where private actions against states were held barred because there was no legislative history or statutory language showing that Congress intended to make it possible for a private citizen to sue a state in the federal courts. Here the statute itself does show that Congress intended to permit a veteran to recover lost wages from an employing state agency. Illinois has not shown that this result would unduly burden its treasury. Moreover, the Senate Report accompanying the 1974 amendment to the statute shows that Congress wanted veterans who had been employed by state governments to have their legal rights litigated in the federal courts, so that their reemployment rights might be determined in such a forum. S.Rep. No. 93-907, 93d Cong., 2d Sess., p. 111.
Here Congress was "exercising legislative authority that is plenary within the terms of the Constitutional (war powers) grant." Therefore, in this case the war powers serve as the vehicle for overriding the bar of the Eleventh Amendment. See Fitzpatrick v. Bitzer, supra at 456, 96 S. Ct. at 2671.
If the defendant's claim of sovereign immunity were to be honored as to this statute, a State would be impairing part of "the mechanism for manning the Armed Forces of the United States." Alabama Power Co. v. Davis, 431 U.S. 581, 583, 97 S. Ct. 2002, 52 L. Ed. 2d 595. To accept defendant's position would render the Constitution self-destructive. Yet, as stated in Lichter v. United States, 334 U.S. 742, 781, 68 S. Ct. 1294, 92 L. Ed. 1694, involving the war contracts Renegotiation Act, the power given to Congress to prosecute war "is not destroyed or ...