author: BRISCOE, Circuit Judge, BACHARACH, Circuit Judge,

text:
    PLANNED PARENTHOOD ASSOCIATION OF UTAH, Plaintiff-Appellant, v. Gary R. HERBERT, in his official capacity as Governor of the State of Utah; Joseph K. Miner, M.D., in his official capacity as Executive Director of the Utah Department of Health, Defendants-Appellees.
    No. 15-4189
    United States Court of Appeals, Tenth Circuit.
    Filed October 28, 2016
    Christine T. Greenwood, Jennifer Fraser Parrish, Peggy Ann Tomsic, Magleby, Cataxinos & Greenwood, Salt Lake City, UT, for Plaintiff-Appellant.
    Parker Douglas, Tyler R. Green, Stanford E. Purser, Office of the Attorney General for the State of Utah, Salt Lake City, UT, for Defendants-Appellees.
    Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ, GORSUCH, HOLMES, BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.

       The Honorable Scott Matheson and the Honorable Carolyn McHugh are recused in this matter and did not participate in the sua sponte consideration of en banc rehearing.

   ORDER

On July 12, 2016, the original panel opinion issued in this matter. Subsequent to that issuance, a poll was called, sua sponte, to consider en banc rehearing. Upon that consideration, a majority of the active available judges of the court voted to deny. See Fed. R. App. P. 35(a). Chief Judg;e Tymkovich, as well as Judges Hartz, Gor-such, and Holmes voted to grant en banc rehearing.

Judge Briscoe has written separately in concurrence to the denial of en banc rehearing, as has Judge Bacharach. Judge Gorsuch has written separately in dissent. Judges Tymkovich, Hartz and Holmes join in that dissent.

A copy of this order shall stand as a supplement to the mandate issued on August 8, 2016.

BRISCOE, Circuit Judge,

concurring in the denial of rehearing en banc.

I write in support of the denial of rehearing en banc for two reasons: to comment on the unusual procedural step this court has taken in this untimely sua sponte request for an en banc poll, and to set the record straight regarding the merits of the panel decision.

I

From a procedural perspective, our consideration and denial of rehearing en banc will surely come as a surprise to the parties, who have clearly moved on. The parties intentionally bypassed further review by the panel or the full court, and instead returned to the district court. And the parties have since stipulated to the entry of a preliminary injunction in favor of plaintiff Planned Parenthood Association of Utah (PPAU).

As our docket reflects, both the panel opinion and the judgment in this case issued on July 12, 2016. The July 26, 2016 deadline for filing a petition for rehearing en banc subsequently passed without the parties taking any action. See Fed. R. App. P. 35(c) (“A petition for rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.”); Fed. R. App. P. 40(a)(1) (“Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment.”); see also Fed. R. App. P. 26(a)(1) (outlining how time is computed under the Federal Rules of Appellate Procedure “[w]hen the period is stated in days”). Under the Federal Rules of Appellate Procedure and our own Tenth Circuit Rules, that left only the mandate to issue.

On August 1, 2016, however, a member of this court, acting despite the absence of a timely filed petition for rehearing by any party, called for a poll. The poll ultimately failed by a vote of 6 to 4, with two judges recusing. The mandate issued on August 8, 2016, prior to the completion of voting, but after it was clear that the poll would fail. According to the district court’s docket, the parties, unaware of our untimely sua sponte activities, stipulated to the entry of a preliminary injunction in favor of PPAU on August 31, 2016, and have moved on with this litigation in district court.

In my view, we should be extraordinarily cautious in exercising our inherent authority to sua sponte rehear a case when the parties themselves have chosen not to seek en banc review. And, presumably, our inherent authority in that regard is, at an absolute minimum, bounded by the standards outlined in Fed. R. App. P. 35 and 10th Cir. R. 35. Although the dissent cites to the standard for en banc review outlined in Fed. R. App. 35(a) and asserts that “the panel acted inconsistently with this court’s previously uniform practice when it comes to questions concerning our standard of review and the burden of proof,” Dissent at 1307-08, there is simply no substance to that assertion, and thus no justification for the unusual procedure that has been invoked.

II

Turning to the merits, the dissent mis-characterizes this litigation and the panel opinion at several turns. To begin with, the dissent incorrectly states that “the preliminary injunction motion turned in significant measure on the question whether [PPAU] could show that it was likely to succeed at trial on its unconstitutional conditions claim.” Dissent at 1307. As a matter of fact, PPAU asserted three claims— an equal protection claim and two unconstitutional conditions claims—and a substantial portion of the panel opinion was devoted to analyzing whether PPAU had established a substantial likelihood of success on the merits of its equal protection claim (the panel agreed with the district court that PPAU failed in this regard),

As for the unconstitutional conditions claims, it is true that PPAU’s likelihood of success ultimately turned on the assessment of evidence concerning Governor Herbert’s motive for issuing the August 14,2015 directive. See Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1260 (10th Cir.2016) (“[T]hat leaves the question of whether PPAU can establish that Herbert issued the Directive in retaliation for PPAU’s exercise of those [constitutional] rights.”). But the dissent again mischaracterizes how both the district court and the panel performed this assessment. To begin with, the dissent incorrectly states that “the district court found that the Governor’s stated intention appeared to be his true intention” in suspending PPAU’s funding. Dissent at 1307. In other words, the dissent states that the district court made an express finding of fact “that the Governor ‘did not retaliate against Plaintiff.’” Id. at 1260 (quoting Planned Parenthood Ass’n of Utah v. Herbert, No. 2:15-CV-693, 2015 WL 9412539, at *6 (D. Utah Dec. 22, 2015)). The dissent in turn asserts that the panel proceeded to review that factual finding de novo. Id.

What in truth occurred is that the panel, after carefully considering the district court’s opinion, concluded that the district court did not make a factual finding regarding the Governor’s motive for issuing the directive, but rather made a legal determination regarding whether the limited evidence before it would be sufficient to allow a factfinder to find in favor of PPAU on the motive issue. Planned Parenthood, 828 F.3d at 1261, n.6 (“As we read the above-quoted language, the district court was merely assessing the limited evidence presented by the parties and determining, as a matter of law, whether PPAU had established a likelihood of succeeding on its unconstitutional conditions claim.”). Indeed, the panel remarked that “it would have been unusual for the district court to make a factual finding on this key issue, given the procedural posture of the case, the fact that no witnesses testified at the preliminary injunction hearing, and the fact that Herbert ha[d] not been deposed yet.” Id. And the panel in turn reviewed the district court’s legal determination de novo. In a related footnote, the panel also stated that, “even assuming that the district court intended to make a factual finding on this issue, we conclude that such finding was clearly erroneous.” Id. That is because the district court failed to consider at all the admissions made by Governor Herbert in responding to PPAU’s motion for preliminary injunction.

Dissatisfied with the panel’s analysis, the dissent asserts that Rule 52(a)(2) imposed an obligation on the district court “to offer a finding on the only and hotly disputed question in this case,” i.e., Governor Herbert’s motive for issuing the directive, and that “the proper course for [the panel] would have been to remand the matter for the district court to discharge its fact-finding function, not to attempt [its] own de novo assessment of the record on appeal.” Dissent at 1309.

The problem with this assertion is twofold. First, the dissent misreads Rule 52(a)(2). That rule states: “In granting or refusing an interlocutory injunction, the court must ... state the findings and conclusions that support its action.” Fed. R. Civ. P. 52(a)(2). In other words, Rule 52(a)(2) generally “requires [a district] court to make findings of fact and conclusions of law if it grants or refuses a preliminary injunction.” 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2576 at 283 (3d ed. 2008). But the Rule obviously affords a district court with discretion in how it goes about resolving the unique issues presented in each case. Thus, although the district court in this case could have made a preliminary factual finding regarding Governor Herbert’s motive, it did not, in the panel’s view, do so, and there was no requirement under Rule 52(a)(2) that the panel remand the case to the district court to make a factual finding on this issue. Second, the panel did not, as the dissent implies, make its own factual findings, but instead properly conducted a de novo review of what it deemed to be the district court’s legal determination.

The dissent also takes issue with the panel’s alternative conclusion that, even assuming the district court intended to make a factual finding regarding Governor Herbert’s motive, the district court clearly erred in doing so. To begin with, the dissent complains that “the panel never proceeded to explain why the district court’s finding qualified as ‘plainly implausible,’ ‘irrational,’ or enjoyed ‘no support’ in the record.” Dissent at 1309. In turn, the dissent asserts that the panel could not “have found the district court’s finding reversible under the correct standard of review had it tried” because “PPAU offered ‘virtually no evidence’ to support its account of the Governor’s intentions.” Id. (quoting Judge Bacharach Concur, at 1309).

To be sure, the panel opinion did not offer a detailed explanation of its alternative conclusion. But that was precisely because it was an alternative conclusion contained in a footnote. And, most certainly, the lack of a detailed explanation for an alternative holding is certainly no basis for granting en banc review. In any event, the panel based its alternative holding on the fact that the district court failed to consider all of the evidence that was contained in the record. Most notably, this included, as described in detail in the panel opinion, the admissions made by Governor Herbert in responding to PPAU’s motion for preliminary injunction.

As for those admissions, the dissent suggests that this is a “new” piece of evidence of the panel’s “own creation.” Dissent at 1311. By no means, however, was this a new piece of evidence unbeknownst to the parties or the district court. As the panel opinion clearly noted, it was Herbert’s opposition brief to PPAU’s motion for preliminary injunction that included the specific admissions to factual allegations contained in PPAU’s complaint. Planned Parenthood, 828 F.3d at 1261 (“[I]n opposing PPAU’s motion for preliminary injunction in the district court, Herbert made more specific admissions.”).

The dissent then attempts to reframe those admissions, asserting that “[t]he panel apparently overlooked the qualifying phrase ‘describing his response to the videos’ and assumed that the Governor admitted all of PPAU’s allegations.” Dissent at 1311 (emphasis in original). “In fact,” the dissent asserts, “the Governor’s brief merely and unsurprisingly acknowledges the complaint’s description of the Governor’s response to the videos—namely that, shortly after viewing them, he came to the belief that Planned Parenthood’s conduct warranted the defunding of certain programs.” Dissent at 1311 (emphasis in original).

Again, however, this refraining belies the record. As the panel opinion explained,

PPAU’s complaint contains numerous factual allegations regarding Herbert’s issuance of the Directive. App., Vol. 1 at 11—14. Defendants, in their memorandum in opposition to PPAU’s motion for preliminary injunction, stated: “For only the purposes of this brief opposing [PPAU’s] motion for preliminary injunction, Governor Herbert does not dispute the factual allegations in paragraphs 12 through 22 of [PPAU’s] Complaint describing his response to the [CMP] videos.” Dist. Ct. Docket No. 19 at ix. In other words, Herbert admitted the factual allegations contained in paragraphs 12 through 22 of PPAU’s complaint for purposes of the preliminary injunction proceedings.

Planned Parenthood, 828 F.3d at 1261, n.7. Notably, paragraphs 12 through 22 of PPAU’s complaint were contained in the “FACTUAL BACKGROUND” section under a heading entitled “GOVERNOR HERBERT’S DIRECTIVE.” Dist. Ct. Docket No. 2 at 6. And, as the panel opinion accurately described them, Herbert’s admissions to those paragraphs directly concerned the issuance of his directive:

To begin with, he admitted that the CMP videos involved other affiliates of Planned Parenthood and not PPAU. [App., Vol. 1] at 12; Dist. Ct. Docket No. 19 at ix. Herbert further admitted that “there is no evidence, or even accusation, that PPAU has ‘colored outside’ of any lines, including because PPAU does not participate in any program that provides fetal tissue for scientific research.” App., Vol. 1 at 12; Dist. Ct. Docket No. 19 at ix. Herbert also admitted that none of the federal funds that flow through the UDOH to PPAU are “used to provide abortions.” App., Vol. 1 at 12; Dist. Ct. Docket No. 19 at ix. In addition, Herbert admitted that the accusations made , by CMP in the videos regarding Planned Parenthood and its other affiliates had not been proven and indeed were false. App., Vol. 1 at 11-12; Dist. Ct. Docket No, 19 at ix. Lastly, Herbert essentially agreed that the national “political climate ■... [wa]s very hostile to Planned Parenthood.” App., Vol. 1 at 3; Dist. Ct. Docket No. 19 at viii-ix.

Id. at 1261-62. Had the panel, as the dissent suggests, attributed to the Governor a series of admissions' he never made, we presumably would have -heard directly from the Governor, either by way of a petition for panel rehearing or a petition for rehearing en banc, that we had misstated the Governor’s admissions. The Governor’s silence, however,. speaks volumes.

The dissent also asserts; curiously, that the panel, by construing Herbert’s admissions in the manner that it did, failed to afford “the sort of comity this court normally seeks to show the States and their elected representatives.” Dissent at 1311 “[T]he notion of comity,” however, involves “a proper respect for state functions.” Sprint Commc’ns v. Jacobs, — U.S. -, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013); see also Michigan v. Bay Mills Indian Cmty., — U.S. -, 134 S.Ct. 2024, 2048, 188 L.Ed.2d 1071 (2014) (noting that “the practical aim of comity” is to “allay[ ] friction between sovereigns”). Precisely how the panel’s interpretation of Herbert’s ad? missions could have violated the notion of comity—an argument, by the way, that Herbert himself has never made—is unclear.

That leaves only one other error that the dissent contends the panel committed: “relaxing] PPAU’s burden of proof and even seem[ing] to reverse it.” Dissent at 1310. According to the Dissent, PPAU was obligated to “show its ‘right to relief ... clear[ly] and unequivocally],’ ” and the panel failed to hold PPAU to this obligation. Id. (quoting Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015) (brackets added by Dissent)). There is no merit to the dissent’s complaints on this point, however, because the purported error is tied directly to the dissent’s mischar-acterization of the record and the evidence contained in it, in particular the admissions made by Governor Herbert in responding to PPAU’s motion for preliminary injunction. As explained in the panel opinion, the evidence, when considered in its proper context, was more than sufficient for PPAU to carry its burden of proof.

In the end, the panel opinion was faithful to circuit precedent, including the applicable standards of review, and the record on appeal. As a result, there is simply no basis upon which to grant rehearing en bane.

BACHARACH, Circuit Judge,

concurring in the denial of rehearing en banc.

I continue to respectfully disagree with the panel majority’s disposition of the claim involving unconstitutional conditions. Nonetheless, I do not believe that we should take the case en banc.

I. Merits

On the merits, the critical issue involves the element of likelihood of success. On this element, I believe our precedent requires us to apply the abuse-of-discretion standard. See Verio v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016).

Application of this standard makes sense here, for the likelihood-of-success element requires us to predict the fact-finder’s ultimate determination after a full-blown trial. That prediction would involve an intrinsically factual issue: the intent of the Governor in issuing the Directive.

In my view, it is appropriate to apply the abuse-of-discretion standard when the district court must predict what the trier of fact would ultimately find. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (applying the abuse-of-discretion standard to the likelihood-of-success inquiry when predicting the eventual outcome on the merits). As a result, I believe that we should follow our precedent in Verio v. Martinez, which establishes the abuse-of-discretion standard on likelihood of success.

As stated in my panel dissent, I do not believe that the district court abused its discretion on the likelihood-of-success inquiry. The district court had little to go on because PPAU had not presented any testimony and its only documentary evidence about the controversial videotapes involved two web articles in the Huffington Post and an email transmitting an article from a website called “Media Matters for America.” PPAU said that each governmental agency investigating the videotapes had exonerated Planned Parenthood, but PPAU did not present any evidence from a governmental source or the actual videotapes.

Though PPAU presented virtually no evidence, everyone agreed that Governor Herbert had attributed the Directive to his own reaction to the Planned Parenthood videotapes. To prevail, PPAU had to prove that Governor Herbert’s stated reason for the Directive was pretextual—that his true motivation was to punish PPAU for exercising its constitutional rights.

Will PPAU be able to prove that at trial? When given the opportunity to do so at the preliminary injunction hearing, PPAU presented no live testimony and virtually no documentary evidence. In these circumstances, the district court had the discretion to predict that PPAU would not satisfy its burden of proof at trial. Thus, I believe that the panel should have affirmed the denial of a preliminary injunction on the claim of unconstitutional conditions.

II. En Banc Consideration

Though I respectfully disagree with the panel’s disposition, I do not favor en banc consideration because I doubt that the panel opinion will' significantly affect future appeals.

Like Judge Gorsuch, I believe that the panel’s review of the district court’s ruling was more searching than the abuse-of-discretion standard permits. But this disagreement is unlikely to affect future cases, for the panel stated that it was reviewing the district court’s order for an abuse of discretion.

Though I respectfully disagree with the panel majority on how it applied this standard, my disagreement involves the application of the standard rather than the standard itself, for the panel did not articulate a more searching standard of review (such as de novo review) on likelihood of success. Nor did the panel majority disavow the need for clear, unequivocal proof to justify a preliminary injunction. Thus, I do not believe that the panel opinion will significantly affect future appeals.

GORSUCH, Circuit Judge, joined by TYMKOVICH, Chief Judge, and HARTZ and HOLMES, Circuit Judges, dissenting from the denial of rehearing en banc.

A great deal about this case is undisputed. Shortly after the public release of videos allegedly showing Planned Parenthood officials negotiating the sale of fetal tissue, the Governor of Utah announced his belief that the conduct was illegal and warranted the suspension of public funding for four programs run by Planned Parenthood Association of Utah (PPAU), the local Planned Parenthood affiliate. PPAU responded by bringing a lawsuit and seeking a preliminary injunction to force the State’s continued funding of the four programs in question. As litigated by the parties, the preliminary injunction motion turned in significant measure on the question whether the organization could show that it was likely to succeed at trial on its unconstitutional conditions claim. And even on that claim the parties’ dispute proved pretty narrow, for everyone agreed on the law. If the Governor discontinued funding because of the group’s affiliation with those accused of illegally selling fetal tissue—as he said he did—the parties agreed that no constitutional violation had taken place. But if the Governor discontinued funding for a different and secret reason— in retaliation for the group’s advocacy of lawful abortions—both sides accepted that a constitutional violation had occurred. •

So it is that the question of preliminary relief on PPAU’s unconstitutional conditions claim hinged on a question of fact: what was the Governor’s intention in suspending funding? See Judge Briscoe Concur. at 1303 (“[I]t is true that PPAU’s likelihood of success ultimately turned on the assessment of evidence concerning Governor Herbert’s motives_”). On the preliminary evidentiary record before it, the district court found that the Governor’s stated intention appeared to be his true intention and that PPAU hadn’t shown it was likely to prove otherwise at trial. Accordingly, it denied the motion for preliminary relief. But when the case reached this court, a panel disagreed and ordered the Governor to fund PPAU. In doing so, I respectfully submit, the panel acted inconsistently with this court’s previously uniform practice when it comes to questions concerning our standard of review and the burden of proof, questions of considerable legal significance. See Fed. R. App. P. 35(a) (en bane review is appropriate to “maintain uniformity of the court’s decisions; or ... [if] the proceeding involves a question of exceptional importance”). *

Consider first the standard of review. Because a preliminary injunction is a form of discretionary equitable relief—and a temporary one at that—we review the district court’s decision only for abuse of discretion. Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015). Where, as here, everything turns on the resolution of a factual dispute, that means “[w]e will not challenge [the district court’s] evaluation [of the evidence] unless it finds no support in the record ... or follows from a plainly implausible, irrational, or erroneous reading of the record.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003); Fed. R. Civ. P. 52(a)(6) (factual findings may be set aside only if clearly erroneous). This deferential standard applies even when the district court makes factual findings concerning documentary proof rather than live testimony. Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). And no doubt that kind of deference is especially appropriate where, as here, the fact-finding district judge at the preliminary injunction stage will be the same fact-finder who will ultimately decide the question of permanent injunctive relief. After all, in cases like this, the district judge is essentially predicting what he or she—not a jury or hypothetical reasonable person—will decide at the end- of the day.

Respectfully, the panel opinion departed from these rules of review. Rather than afford the district court’s factual finding about the Governor’s intentions the deference it was due, the panel offered its own independent assessment of the record. As Judge Bacharach’s panel dissent and his concurrence today both observe, in doing so the panel employed a “more searching” standard of review than our precedents “permit[ ].” Judge Bacharach Concur, at 1307; Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1270 (Bacharach, J., concurring in part ánd dissenting in part). Even Judge Briscoe, the author of the panel opinion, today acknowledges that the panel engaged in de novo review. Judge Briscoe Concur, at 1303. To be sure, the panel offered two (albeit alternative) arguments in defense of its approach. But, respectfully, neither supports the panel’s departure from our normal rules of review.

First, the'panel asserted that no deference was due because the district court failed to supply a factual finding about the Governor’s intentions. Planned Parenthood Ass’n of Utah, 828 F.3d at 1261 n.6. But the district court did precisely that: it expressly found that the Governor “did not retaliate against Plaintiff’ and it proceeded to supply many and extensive reasons for its finding. See Cypert v. Indep. Sch. Dist. No. 1-050 of Osage Cty., 661 F.3d 477, 483 (10th Cir. 2011) (noting whether the defendant retaliated against the plaintiff for engaging in constitutionally protected activity is “ordinarily for the trier of fact”); Maestas v. Segura, 416 F.3d 1182, 1187-88 (10th Cir. 2005) (same). Besides, even supposing (counterfactually) that the district court had failed to offer a finding on the only and hotly disputed factual question in this case, it would have failed its duty under Fed. R, Civ. P. 52(a)(2) to supply a necessary finding and the proper course for this court would have been to remand the matter for . the district court to discharge its fact-finding function, not to attempt our own de novo assessment of the record on appeal. See id. (“In granting or refusing an interlocutory injunction, the court must ... state the findings ... that support its action.”); Joseph A. by Wolfe v. N.M. Dep’t of Human Servs., 69 F.3d 1081, 1087-89 (10th Cir. 1995) (remanding to the district court to make adequate factual findings).

Second, and proceeding in the opposite direction, the panel summarily suggested in a footnote that any finding the district court did make had to have been clearly erroneous. Planned Parenthood Ass’n of Utah, 828 F.3d at 1261 n.6. But the panel never proceeded to explain why the district court’s finding qualified as “plainly implausible,” “irrational,” or enjoyed “no support” in the record. And surely merely being “unconvinc[ed],” as the court-professed to be, will not do. Id. at 1261. Neither, for that matter, could the panel have found the district court’s finding reversible under the correct standard of review had it tried, for as Judge Bacharach explained and as we shall see in a moment, PPAU offered “virtually no evidence” to support its account of the Governor’s intentions and the record “easily” permitted, whether or not it compelled, the finding the district court offered. Judge Bacharach Concur, at 1306-07; Planned Parenthood Ass’n of Utah, 828 F.3d at 1269 (Bachar-ach, J., concurring in part and dissenting in part).

Next consider the burden of proof. Even if the panel, could have properly applied a de novo standard of review, a preliminary injunction still remained an “extraordinary remedy” and it fell to PPAU as the movant to show its “right to relief ... clearly] and unequivocally].” Petrella, 787 F.3d at 1256. True, this court once suggested that the plaintiffs burden on the likelihood of success factor may be relaxed when the other preliminary injunction factors are satisfied. See Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir. 2006). But, as Judge Bacharach’s panel dissent noted, the Supreme Court has since cast doubt on that judgment. See Planned Parenthood Ass’n of Utah, 828 F.3d at 1267-68 (Bacharach, J., concurring in part and dissenting in part) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). See also Diñé Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281-83, No. 15-2130, 2016 WL 6301136 (10th Cir. Oct. 27, 2016).

Respectfully, the panel in this case not only conducted its own de novo review of the record, it relaxed PPAU’s burden of proof and even seemed to reverse it. For PPAU to prevail in the case as litigated, everyone acknowledges, it had to show that the Governor’s real reason for his decision was something secret and different than he now contends it to be. Yet, it is undisputed that when the Governor announced his decision to discontinue funding he contemporaneously explained that his decision came in direct response to the videos. And it is undisputed, too, that the Governor was free as a matter of law to suspend the funding in question for this reason. To be sure, the panel cited the fact that the Governor has long opposed abortion and, from this, inferred that he wanted to punish the group for its lawful abortion advocacy. But it is undisputed that the Governor has held office since 2009 and had taken no action against PPAU until shortly after the release of the videos in 2015. And it is undisputed that the Governor has repeatedly granted or extended funding to PPAU for numerous programs since taking office. So it is that, analytically, to reach the decision it did the panel had to dismiss the Governor’s evidence suggesting an obvious and temporally proximate potential cause of the group’s asserted injury—the videos—in favor of PPAU’s evidence suggesting a temporally remote potential cause that was itself contradicted by intervening evidence. And whatever else might be said about this proof, it’s hard to see how it could qualify as clear and unequivocal proof that PPAU was likely to succeed on the merits. As Judge Bacharach observed, a proper application of the burden of proof “easily” required affirmance. Planned Parenthood Ass’n of Utah, 828 F.3d at 1269-71 (Bacharach, J., concurring in part and dissenting in part); Judge Bacharach Concur, at 1306-07.

Indeed, the panel’s relaxation of the burden of proof in this manner sits at odds with a very large body of circuit precedent. In so many fields (like employment or business disputes) this court routinely holds proof exactly like PPAU’s—pointing to a temporally remote cause and disregarding proof of alternative and interven-mg causes—insufficient even to survive summary judgment. See Trujillo v. Pacifi-Corp, 524 F.3d 1149, 1157 n.5 (10th Cir. 2008). (collecting cases dismissing similar causation claims as too speculative). And it is difficult to see how this court could, consistent with so much precedent, hold proof along the very same lines sufficient to establish a likelihood of success.

Faced with the problem that PPAU itself presented “virtually no evidence” to discharge its burden of proof consistent with circuit precedent, Planned Parenthood Ass’n of Utah, 828 F.3d at 1269-71 (Bacharach, J., concurring in part and dissenting in part), the panel proceeded to supplement the group’s arguments for reversal with a new one of its own creation. The panel asserted that the Governor, in a brief he submitted to the district court, “admi[tted]” that he knew the videos to be fabrications. And in light of this asserted admission, the panel reasoned, the Governor surely could not have relied on the videos as grounds for his decision to discontinue funding. Indeed, the panel placed great stress on this argument when explaining its grounds for reversal. See Planned Parenthood Ass’n of Utah, 828 F.3d at 1261-62.

But, respectfully, this new argument only serves to highlight the problems with the panel opinion. For here, in its final and key movement, the panel advanced and adjudicated an argument for reversal that PPAU never made—not in this court, not in the district court. All in spite of and without discussing this court’s rule that it will not normally pursue arguments for reversal that an appellant hasn’t presented on appeal or preserved in the district court. See Verio v. Martinez, 820 F.3d 1113, 1132 (10th Cir. 2016); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011).

Perhaps even more troubling still, proceeding without the benefit of adversarial testing the panel proceeded to make a mistake, one inconsistent with the sort of comity this court normally seeks to show the States and their elected representatives. For a look at the Governor’s district court brief quickly reveals the reason why PPAU never attempted the panel’s new argument: the brief contains nothing like the bombshell admission the panel attributed to it. The Governor’s brief says simply that, for “purposes of this brief opposing [the] motion for preliminary injunction, Governor Herbert does not dispute” the factual allegations in paragraphs 12 through 22 of PPAU’s complaint “describing [his] response to the videos.” Defs Mem. Opp’n. to Pis. Mot. for Prelim. Inj. at ix, ECF No. 19 (emphasis added). The panel apparently overlooked the qualifying phrase “describing his response to the videos” and assumed that the Governor admitted all of PPAU’s allegations. In fact, the Governor’s brief merely and unsurprisingly acknowledges the complaint’s description of the Governor’s response to the videos—namely that, shortly after viewing them, he came to the belief that Planned Parenthood’s conduct warranted the de-funding of certain programs. Indeed, it is hard to imagine that the Governor’s able lawyers would have conceded away their entire case while still opposing relief, all without PPAU’s equally able lawyers noticing at any time throughout extensive district court and appellate proceedings. See Planned Parenthood Ass’n of Utah, 828 F.3d at 1269-70 (Bacharach, J., concurring in part and dissenting in part) (noting the absence of any admission). And it seems more than a little at odds with the comity federal courts normally afford the States and their elected representatives for this court, on its own motion, to attribute to a sitting Governor an admission he never made in order to discredit, in a published judicial opinion, the statements he publicly offered for his official actions. See Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct 598, 46 L.Ed.2d 561 (1976) (“Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” (internal quotation marks omitted)).

*

Respectfully, this case warrants rehearing. As it stands, the panel opinion leaves litigants in preliminary injunction disputes reason to worry that this court will sometimes deny deference to district court factual findings; relax the burden of proof by favoring attenuated causal claims our precedent disfavors; and invoke arguments for reversal untested by the parties, unsupported by the record, and inconsistent with principles of comity. Preliminary injunction disputes like this one recur regularly and ensuring certainty in the rules governing them, and demonstrating that we will apply those rules consistently to all matters that come before us, is of exceptional importance to the law, litigants, lower courts, and future panels alike. I respectfully dissent.

      . Judge Briscoe contends that we should be reluctant to grant en banc rehearing sua sponte. See Judge Briscoe Concur, at 1302. And it’s certainly true that the threshold required to win rehearing en banc under Rule 35(a) is and should be a very high one. But any suggestion that en banc proceedings should only, come by way of motion from the parties, or that sua sponte en banc polls and proceedings like this one are somehow irregular, would be quite mistaken. Sua sponte en banc proceedings have played a long and familiar role in federal appellate practice. See, e.g., United States v. Sturm, 672 F.3d 891, 895 (10th Cir. 2012); United States v. Hardman, 297 F.3d 1116, 1118 (10th Cir. 2002); United States v. Singleton, 144 F.3d 1343, 1361-62 (10th Cir. 1998); United States v. Hill, 53 F.3d 1151, 1152 (10th Cir. 1995); see also 16AA Charles Alan Wright et al., Fed. Frac. & Proc. § 3981.2 (4th ed. 2008) (noting that "[a] court of appeals may decide on its own motion to sit en banc" and collecting cases). No doubt, too, the power to call for rehearing sua sponte exists for good reason, for otherwise a panel opinion could ensconce precedentially binding error into circuit law that the full court would be powerless to correct only because of the fortuity that the parties who could seek review happen to lack sufficient incentive to do so (say because of a settlement or extralegal considerations). Cf. W. Pac. R. Corp. v. W. Pac. R. Co., 345 U.S. 247, 260 n.20, 73 S.Ct. 656, 97 L.Ed. 986 (1953) (en banc rehearing is "an important and useful device in the administration of justice”).

      . "Gary Herbert has been the Governor of Utah for the past six years. Although Plaintiff has been associated with other pro-choice entities since Governor Herbert took office and it started performing abortions in Utah in 2011, the Governor still allowed the [Utah Department .of Health] to -enter into and maintain contracts with Plaintiff. It was not until the videos were released that the Governor acted to terminate the contracts. Indeed, Plaintiff alleges and ■ the defendants do not dispute that the Governor said, "We now have video where they’re, selling fetus body parts for money- and it’s an outrage and the people of Utah, are; outraged. I’m outraged. So for coloring outside the lines, [Plaintiff] forfeits some of [its] benefits.’ Complaint, ¶ 14. (Dkt. No. 2). Both the Governor’s words and the temporal proximity between the release of the videos and his directive to terminate the contracts support he did not retaliate against Plaintiff based upon its right of association nor its right to advocate for and perform abortions. Therefore, the court concludes Plaintiff is unlikely to preváil on its unconstitutional condition claims.” Planned Parenthood Ass’n of Utah v. Herbert, No. 2:15-CV-693, 2015 WL 9412539, at *6 (D. Utah Dec. 22, 2015) (second and third alterations in original).

      , Separately, the panel also briefly suggested that it would have been “unusual” for the district court to issue findings of fact at the preliminary injunction stage in this particular case given that discovery had just begun. Planned Parenthood Ass’n of Utah, 828 F.3d at 1261 n.6. But, as we've seen, district courts must provide any factual findings necessary to support their preliminary injunction rulings under Fed. R. Civ. P. 52(a)(2); their findings are due our deference even when based on purely documentary proof under Anderson, 470 U.S. at 574, 105 S.Ct. 1504; and district courts routinely decide preliminary injunction disputes before the great grinding gears of our civil discovery process engage.


source: Caselaw Access Project

author: SMITH, District Judge:

license: Public Domain

text:
    Christine J. WILLIAMS, Plaintiff-Appellant, v. POARCH BAND OF CREEK INDIANS, Defendant-Appellee
    No. 15-13552
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/18/2016

      Candis A. McGowan, L. William Smith, Robert L. Wiggins, Jr., Wiggins Childs Pantazis Fisher & Goldfarb, Birmingham, AL, for Plaintiff-Appellant.
    James C. Pennington, Matthew Tae Phillips, Ogletree Deakins Nash Smoak & Stewart, PC, Birmingham, AL, Mark H. Reeves, Kilpatrick Townsend & Stockton; LLP, Augusta, GA, for Defendant-Appel-lee.
    Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and SMITH, District Judge.

       Honorable 1 C. Lynwood Smith, Jr.,- United States District Judge for the Northern District of Alabama, sitting by designation.

   SMITH, District Judge:

Christine J. Williams, the plaintiff below and appellant here, was employed for more than twenty-one years as the laboratory manager and chief medical technologist in the Health Department operated by the Poarch Band of Creek Indians (“the Poarch Band”), a federally-recognized tribe of Native Americans. The Department is located on reservation lands, and positions within it are considered to be jobs of Tribal government. Plaintiff asserts that her employment was terminated because of her age (which she described as “over 55”), and that she was replaced by a 28-year-old female who “did not have enough experience to be a lab manager.” Plaintiff subsequently filed a complaint in the United States District Court for the Southern District of Alabama, alleging a single claim of discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). The Poarch Band moved to dismiss the suit, arguing that the doctrine of tribal sovereign immunity deprived the court of subject matter jurisdiction. The Magistrate Judge to whom the action originally was assigned entered a report recommending that the motion be granted. Plaintiffs objections were overruled by the District Court Judge, who adopted the Magistrate’s Report and Recommendation and dismissed the case. This appeal followed. Following review and with the benefit of oral arguments, we affirm.

I. STANDARD OF REVIEW

We review the legal conclusions underlying a district court’s dismissal of claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction de novo, and its findings of jurisdictional facts for clear error. See, e.g., Houston v. Marod Supermarkets, 5Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). “The burden for establishing federal subject matter jurisdiction rests with the party bringing the claim.” Sweet Pea Marine Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) (citation omitted). If the plaintiff fails to shoulder that burden, the case must be dismissed. E.g., In re Trusted Net Media Holdings, LLC, 550 F.3d 1035, 1042 (11th Cir. 2008) (“[I]f the court determines that subject matter jurisdiction is lacking, it must dismiss the entire case.”) (alteration supplied).

II. DISCUSSION

The principle that American Indian tribes possess “sovereignty”—that they are a group of people bound together by ties of common heritage, exercising dominion over a defined geographical area, and possessing the fundamental right of self-government through the enactment and enforcement of substantive laws within that territory—is a precept that preceded the creation of the United States government. That belief is reflected in statements made by Alexander McGillivray,- the principal chief of the “Upper Creek” confederation from 1782 until his death in 1793. McGillivray pushed to centralize Creek authority in the present states of Alabama and Georgia. Following the 1783 Treaty of Paris that formally ended the American Revolution, he authored a letter on behalf of the Creek, Chickasaw, and Cherokee Indian nations that angrily protested the nascent American government’s assertion of title to—as well as the English Monarchy’s cession of—“our lands”:

We Cheifs and Warriors of the Creek Chickesaw and Cherokee Nations, do hereby in the most solemn manner protest against any title claim or demand the American Congress may set up for or against our lands, Settlements, and hunting Grounds in Consequence of the Said treaty of peace between the King of Great Brittain and the States of America declaring that as we were not partys, so we are determined to pay no attention to the Manner in which the British Negotiators has drawn out the Lines of the Lands in question Ceded to the States of America—it being a Notorious fact known to the Americans, known to every person who is in any ways conversant in, or acquainted with American affairs, that his Brittannick Majesty was never possessed either by session purchase or by right of Conquest of our Territorys and which the Said treaty gives away. On the contrary it is well known that from the first Settlement of the English colonys of Carolina and Georgia up to the date of the Said treaty no title has ever been or pretended to be made by his Brittanic Majesty to our lands except what was obtained by free Gift or by purchase for good and valuable Considerations.

John Walton Caughey, McGillivray of the Creeks 91 (Norman; University of Oklahoma Press 1938) (1959 Reprint) (misspellings in original, emphasis supplied).

McGillivray’s mixed-race heritage and experiences molded him into “a literate and erudite bicultural Creek”—a man whose superior negotiation skills. earned him the title of “the Talleyrand of Alabama” after leading a delegation of thirty powerful Creek chiefs and warriors to New York City, the first capítol of George Washington’s fledgling government, during July of 1790. There he negotiated with Secretary of War Henry Knox the first treaty ratified under the new Constitution. McGillivray insisted that “sovereignty was one of the Indian nations’ ‘natural rights ... which belonged] to our ancestors and hath descended from them to us Since the beginning of time.’ ” The resulting “Treaty of New York,” as it became known to history,

optimistically established “perpetual peace and friendship” between America and the entire Creek nation and settled -the boundary between the state of Geor-
■ gia and the Creeks, with .the Creeks agreeing to give up roughly two-thirds of the land Georgia had claimed under the previous treaties. The Creeks also promised to return prisoners taken during the border conflicts of the 1780s. In exchange for the territory, • the Creeks received a perpetual annuity of $1,500 as well as a gift of trade goods and other items. The nation-to-nation relationship and respect for tribal sovereignty was a continuation of British policy established in the eighteenth century, which took Indian affairs out of the hands. of the colonies and centralized them in the hands of an imperial “Indian department.” The exclusive right of the United States to treat with Indian tribes (as opposed to individual states) was embedded in the Constitution.

Kathryn H. Braund, The Creeks Take New York, 122 Alabama Heritage 19, Fall 2016 (emphasis supplied).

McGillivray’s insistence that the federal government acknowledge the existence of Native American sovereignty has been reflected in numerous decisions of the United States Supreme Court. See, e.g., Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (“Indian: tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.”) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831)); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (stating that Indian tribes “have power to make- their own substantive law in internal matters, and to enforce that law in their own forums”) (citations omitted); United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.”); United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (observing that Indian tribes are “a separate people, with the power of regulating their internal and social relations”); Worchester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832) (holding that Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of self-government).

For such reasons, Indian tribes benefit from the same “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670 (citations omitted).-Even so, that immunity is not absolute, but subject to the plenary power of Congress to limit, modify, or eliminate altogether. See, e.g., Oklahoma Tax Commission, 498 U.S. at 510, 111 S.Ct. 905 (“Congress has always been.at liberty to dispense with such tribal immunity or to limit it.”); Talton v. Mayes, 163 U.S. 376, 384, 16 S.Ct. 986, 41 L.Ed. 196 (1896) (“Indian tribes are subject to the dominant authority of congress.”).

Thus, suits such as' this one are barred by the doctrine of tribal sovereign immunity, unless the plaintiff shows either a clear waiver of that immunity by the tribe, or an express abrogation of the doctrine by Congress. See, e.g., Oklahoma Tax Commission, 498 U.S. at 509, 111 S.Ct, 905 (citing Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670); Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (holding that “an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”).

There is no evidence that the Poarch Band waived its immunity, either generally or in the present suit. Therefore, the Tribe retains its common law exemption from suit, unless plaintiff demonstrates that Congress abrogated the doctrine of tribal sovereign immunity when enacting the ADEA.

A. Plaintiff’s Comparison of the Definitions of the Term “Employer” Found in the ADEA and Title VII, in Conjunction With the Supreme Court’s Opinion in Fitzpatrick v. Bitzer

The Poarch Band contends that the text of the ADEA “contains' no mention of tribal immunity at all, much less an express and unequivocal abrogation of tribal immunity from private lawsuits.” In response, plaintiff argues that a comparison of the definition of the term “employer” found in Title VII of . the Civil Rights Act of 1964 with the ADEA’s definition of that same term demonstrates that Congress intended to abrogate tribal immunity when enacting the ADEA.

Title VII was enacted on July 2, 1964. The pertinent part of the Act’s original definition of the term “employer” read as follows:

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, hut such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision thereof, (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of the Internal Revenue Code of 1954: ...

Pub. L. No. 88-352, § 701(b), 78 Stat. 253-54 (1964) (emphasis and ellipsis supplied).

The ADEA was enacted three years later, on December 15, 1967, and Congress appears to have patterned that Act’s definition of the term “employer” upon Title VIPs formulation. Thus, the pertinent part of the ADEA provision provides that: Pub. L. No. 90-202, § 11(b), 81 Stat. 605 (1967) (emphasis and ellipsis supplied). Plaintiff focuses upon Congress’s failure to include the phrase “an Indian tribe” in the list of those entities excluded from the definition of an “employer” for purposes of the ADEA, and argues that the omission indicates a congressional intent to abrogate tribal sovereign immunity as a bar to suit under the Act. Plaintiff relies upon thé Supreme Court’s opinion in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), to support her argument. As will be seen, however, that case does not assist her.

The term “employer” means a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: ... The term also means any agent of such person, but such term does not include the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof.

The plaintiffs in Fitzpatrick were a group of retired male employees of the State of Connecticut who claimed that certain provisions in that State’s statutory retirement benefit plan discriminated against them because of their sex and, therefore, violated Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an “employer” to discriminate against “any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”). As previously noted, however, when Title VII was enacted on July 2, 1964, it expressly exempted “a State or political subdivision thereof’ from the definition of those “employers” required to comply with the Act. Moreover, Title VII then d&fined the term “employee” as meaning simply “an individual employed by an employer.” Pub. L. No. 88-352, § 701(f), 78 Stat. 253-54 (1964). As a consequence of the juxtaposition of those two definitions, the Fitzpatrick plaintiffs would not have been eligible to sue the State of Connecticut under the terms of Title VII as originally enacted.

By the date on which the Fitzpatrick suit was commenced, however, both of the foregoing definitions had been significantly amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103113 (1972). For example, the 1972 Amendments deleted the phrase “a State or political subdivision thereof’ from Title VII’s definition of the term “employer,” Id., § 2(2). In addition, the 1972 Amendments expanded the definition of “employee” to include persons “subject to the civil service laws of a State government, governmental agency or political subdivision.” Pub. L. No. 92-261, § 2(5), 86 Stat. 103 (1972). As a result of those two amendments—together with a change to Title VII’s definition of the term “person”—the Fitzpatrick plaintiffs became statutorily entitled to .sue the State of Connecticut for alleged violations of Title VII.

The gravamen of plaintiffs argument in the present case can be succinctly stated as follows: Because the Supreme Court’s opinion in Fitzpatrick considered the 1972 Amendment of Title VII that deleted the phrase “a State or political subdivision thereof’ from the Act’s definition of “employer” sufficient to bring states within the purview of that Act, Congress’s failure to include the phrase “an Indian tribe” in the list of entities excluded from the ADEA’s definition of “employers” demonstrated a congressional intent to abrogate tribal sovereign immunity as a bar to suit under the Act. Specifically, plaintiff argues that

Congress can express its will by actions which delete words as much as adding them. Its decision to delete the word “Indian tribe” from the definition of “employer” that it borrowed from Title VII was no different: from the equivalent deletion of state governments from that same definition which the Supreme Court held to be sufficient to abrogate the state’s immunity from Title VII claims in Fitzpatrick v. Bitzer, 417 [427] U.S. 445, 452 [96 S.Ct. 2666, 49 L.Ed.2d 614] (1976). There was no explicit declaration of abrogation in that instance other than the deletion of the following words: “The term ‘employer’ ... does not include ... a state or political subdivision.” Congress used that same means of abrogating tribal immunity in the ADEA by deleting the following words from the definition of “employer” it adopted from Title VII: “The term ‘employer ... does not include ... an Indian tribe.” 42 U.S.C. § 2000e(b). By deciding to include those words in Title VII in 1964 but to delete them three years later when it enacted the ADEA on the basis of Title VII, Congress expressed its clear and unmistakable intent to abrogate tribal immunity from suits for age discrimination. That was a deliberate choiee by Congress.

Additional Principal Brief for Plaintiff-Appellant, at 8-9 (ellipses in original, footnotes omitted, emphasis supplied). Plaintiffs argument is not persuasive, for at least three reasons.

First, plaintiffs repeated use of such terms as “delete,” “deletion,” and “deleting” is improper, because the phrase “an Indian tribe” was never included in the list of entities excluded from the ADEA’s definition of those “employers” required to comply with the Act. Hence, the phrase could not have been “deleted.” It would have been more correct for plaintiff to say that Congress “omitted,” or “failed to include,” that phrase when defining the term “employer” for purposes of the ADEA.

Second, and related to the first point, the silence of the statutory text of the ADEA and its legislative history on the issue of whether Congress intended the Act to apply to Indian tribes is ambiguous. It certainly is not the “clarion call of clarity” required by our decision in Freemanvile Water Systems v. Poarch Band of Creek Indians, 563 F.3d 1205 (11th Cir. 2009): ie., “Indian tribes have sovereign immunity from lawsuits unless Congress has abrogated it in the statute creating the right of action that is asserted against the tribe. To be effective the expression of Congressional intent must be a clarion call of clarity. Ambiguity is the enemy of abrogation.” Id. at 1206 (emphasis supplied); see also Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1131 (11th Cir. 1999) (observing that the Supreme Court “has held that Congress may abrogate a sovereign’s immunity ‘only by making its intention unmistakably clear in the language of the statute’; legislative history and ‘inferences from general statutory language’ are insufficient”) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Indeed, one could just as easily conclude from the omission of any reference to Indian tribes in the text of the ADEA, related committee reports, or the floor statements of legislators during consideration of the Act that -Congress never considered the ADEA’s impact upon Indian tribes.

Fundamentally, however, plaintiffs argument misconstrues the central issue addressed iti Fitzpatrick. That case turned upon the question of whether Congress possessed the power to abrogate the sovereign immunity enjoyed by the states under the Eleventh Amendment, and to expose them to suit under Title VII. The Court held that the Fourteenth Amendment was enacted specifically to limit the power of the states and, thereby, that it fundamentally altered the balance of state and federal power struck by the Constitution. As a consequence, Section 5 of the Fourteenth Amendment, the so-called “Enforcement Clause,” vested Congress with the power to pierce the shield of sovereign immunity afforded the states by the Eleventh Amendment, and to enter an award against Connecticut for retroactive retirement benefits as compensation for losses caused by the State’s alleged discrimination on the basis of the plaintiffs’ sex. See Fitzpatrick, 427 U.S. at 448, 96 S.Ct. 2666. The 1972 Amendment’s deletion of the phrase “a State or political subdivision thereof’ from the list of entities excluded from Title VU’s definition of “employer” was not, standing alone, considered by the Supreme Court to be a clear indication of congressional intent to abrogate the states’ Eleventh Amendment sovereign immunity for purposes of Title VII actions. Therefore, Fitzpatrick cannot be said to dictate a finding that Congress intended to abrogate tribal sovereign immunity under the ADEA by failing to exclude “an Indian tribe” from the definition of those “employers” that were required to comply with the ADEA.

B. Statutes of General Applicability

Plaintiff also attempts to avoid the doctrine of tribal sovereign immunity by emphasizing that the ADEA is a statute of “general applicability,” and Congress did not expressly exclude Indian tribes from the Act’s coverage. That argument is foreclosed by our decision in Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, supra, which involved a claim of disability discrimination under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. (“ADA”). We held there that, even though the ADA generally applied to the Miccosukee Indian Tribe, suits against the Tribe were, nevertheless, barred by the doctrine of tribal sovereign immunity. See 166 F.3d at 1134-35. Specifically, our opinion stated that:

A general statute presumptively governs Indian tribes and will apply to them absent some superseding indication that Congress did not intend tribes to be subject to that legislation. See Federal Power Comm’n v. Tuscarora Iridian Nation, 362 U.S. 99, 120, 80 S.Ct. 543, 556, 4 L.Ed.2d 584 (1960). The leading summary of the three circumstances that may defeat the “general statute” presumption is found in a Ninth Circuit case, Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985). As the district court recognized, a general statute applies to Indian tribes unless its application would (1) abrogate rights guaranteed under an Indian treaty, (2) interfere with purely intramural matters touching exclusive rights of self-government, or (3) contradict Congress’s intent, see id. at 1116. The Associations and the Miccosukee Tribe agree that no treaty relevant to this case exists and that Congress has not specifically expressed its intent that the ADA not apply to Indian tribes. Thus, the presumption of applicability controls here unless the Act “touches ‘exclusive rights of self-governance in purely intramural matters.’ ” Coeur d’ Alene, 751 F.2d at 1116 (quoting United States v. Farris, 624 F.2d 890, 898 (9th Cir.1980)).
We agree with the district court and the majority of our sister courts that have applied this test that tribe-run business enterprises acting in interstate commerce do not fall under the “self-governance” exception to the rule that general statutes apply to Indian tribes. In Coeur d’Alene, the Ninth Circuit explained the limitations of this exception:
The tribal self-government exception is designed to except purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations from the general rule that otherwise applicable federal statutes apply to Indian tribes.
The operation of a farm that sells produce on the open market and in interstate commerce is not an aspect of tribal self-government. Because the Farm employs non-Indians as well as Indians, and because it is in virtually every respect a normal commercial farming enterprise, we believe that its operation free of federal health and safety regulations is neither profoundly intramural ... nor essential to self-government. 751 F.2d at 1116 (citations and internal punctuation omitted). The Miccosukee Tribe’s restaurant and gaming facility is a commercial enterprise open to non-Indians from which the Tribe intends to profit. The business does not relate to the governmental functions of the Tribe, nor does it operate exclusively within the domain of the Tribe and its members. In fact, it is precisely the sort of facility within “the array of establishments ... available to others who do not currently have disabilities” that Congress intended to make “equally accessible” to disabled individuals through enactment of Title III of the ADA. We hold, therefore, that because the ADA is a generally applicable law and because no exception to the presumption that such statutes apply to Indian tribes controls this case, Title III of the ADA governs the Miccosukee Tribe in its operation of its gaming and restaurant facility.
The district court ended its consideration of the Tribe’s motion to dismiss this lawsuit with its finding that Title III governs Indian tribes and that no exception prevents its application to the Mic-cosukee Tribe’s commercial enterprise. The analysis does not stop here, however, for whether an Indian tribe is subject to a statute and whether the tribe may be sued for violating the statute are two entirely different questions. As the Supreme Court bluntly stated in Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 1703, 140 L.Ed.2d 981 (1998), “there is a difference between the right to demand compliance with state laws and the means available to enforce them.” This principle, which simply spells out the distinction between a right and a remedy, applies with equal force to federal laws.

Florida Paraplegic, 166 F.3d at 1129-30 (emphasis supplied).

The same result pertains in this case. The difference between being subjected to the requirements of a statute and the right to commence a suit demanding compliance with (or damages for violations of) that same statute may be razor-thin, but it is a distinction that has been acknowledged consistently.

Thus, even though the ADEA is a statute of general applicability, and the Poarch Band might be generally subject to its terms, the doctrine of tribal sovereign immunity protects the Poarch Band from suits under the statute.

C. The Law in Other Circuits

Other Circuits that have considered the issue raised by this appeal also have determined that federal courts lack subject-matter jurisdiction over an ADEA claim asserted against a federally-recognized Indian tribe. For example, the Tenth Circuit has stated:

We believe that unequivocal Supreme Court precedent dictates that in cases where ambiguity exists (such as that posed by the ADEA’s silence with respect to Indians), and there is no clear indication of congressional intent to abrogate Indian sovereignty rights (as manifested, e.g., by the legislative history, or the existence of a comprehensive statutory plan), the court is to apply the special canons of construction to the benefit of Indian interests.

E.E.O.C. v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir. 1989) (emphasis in original).

The Second Circuit also has held that Congress did not abrogate tribal sovereign immunity under the ADEA. See Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 86 (2d Cir. 2001). In a recent unpublished opinion that answers plaintiff’s argument about comparing Title VIPs definition of “employer” to the ADEA’s definition of that .same term, the Second Circuit upheld a district court’s dismissal of the plaintiffs ADEA claim against an Indian tribe, saying that:

Unlike Title VIPs definition of employer, the ADEA’s definition of employer does not exclude American Indian tribes. Compare 42 U.S.C. § 2000e(b) (Title VII), with 29 U.S.C. § 630(b) (ADEA). Nonetheless, “[a]s a matter of federal common law, an Indian tribe enjoys sovereign immunity from suit except where ‘Congress has authorized the suit or the tribe has waived its immunity.’” Garcia, 268 F.3d at 84 (quoting Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998)). Agencies of a tribe enjoy “the same presumption of immunity” in a suit for damages. Id.) see also Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir. 2000). The Supreme Court has explained that, “[t]o abrogate tribal immunity, Congress must unequivocally express that purpose,” and “to relinquish its immunity, a tribe’s waiver must be clear.” C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 418, 121 S.CL 1589, 149 L.Ed.2d 623 (2001) (internal quotation marks omitted). Congress has not unequivocally expressed its purpose to abrogate tribal sovereign immunity pursuant to the ADEA, Garcia, 268 F.3d at 86, nor has plaintiff identified any applicable waiver of immunity from such suits in federal court. Accordingly, tribal sovereign immunity bari-ed Tremblay’s ADEA claim.

Tremblay v. Mohegan Sun Casino, 599 Fed.Appx. 25, 26 (2d Cir. 2015) (alterations in original).

The Eighth Circuit also has held that no evidence of a congressional intent to abrogate tribal sovereign immunity can be drawn from, a comparison of Title. VIPs definition of “employer” to the ADEA’s definition of that same term:

Although the two provisions [ie., the original definitions of “employer” in Title VII and the ADEA] are generally similar, differences do exist. Under ordinary canons of construction, the omission of the phrase “an Indian tribe” in the ADEA in comparison with its inclusion in Title VII could be construed as indicating that Indian tribes were' intended to be covered by the ADEA. United States v. Dion[, 476 U.S. 734, 739-40, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) ] ..., however, indicates that some affirmative evidence of congressional intent, either in the language of the statute or its legislative history, is required to find the requisite “clear and plain” intent to apply the statute to Indian tribes. Furthermore, ambiguities of congressional intent must be resolved in favor of the tribal sovereignty.... Because of the special rules of construction that apply in a case such as this, we do not find that a clear and plain intention of Congress should be extrapolated from the omission of the phrase “an Indian tribe” from the definition' of “employer” in the ADEA.

EEOC v. Fond du Lac Heavy Equipment and Construction Co,, 986 F.2d 246, 250-51 (8th Cir. 1993) (alterations and ellipses supplied).

Plaintiff responds that the foregoing opinions contained, “strongly reasoned dissents,” and did not .consider the Supreme Court’s holding in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Even so, this court should not give more weight to a dissenting opinion than to a majority decision. Moreover, as previously discussed, Fitzpatrick is not helpful to plaintiff.

Thus, the weight of authority in federal courts supports upholding the right of the Poarch Band to tribal sovereign immunity from a claim based upon the ADEA.

III. CONCLUSION

For the foregoing reasons, we find that the Poarch Band is entitled to tribal sovereign immunity from plaintiffs ADEA claim. Accordingly, we affirm the district court’s decision to grant the Poarch Band’s motion to dismiss for lack of subject-matter jurisdiction.

AFFIRMED.

      . Additional Principal Brief for Plaintiff-Appellant, at 4. See also, e.g., 25 U.S.C. § 479a-l (requiring that the Secretary of the U.S. Department of the Interior annually "publish in the Federal Register a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians”); 81 Fed. Reg. 26826 (listing 567. Tribal entities that were recognized, as of May 4, 2016, as eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian Tribes); id. at 26829 (listing the Poarch Band, previously described as "the Poarch Band of Creek Indians of Alabama”); 80 Fed. Reg. 1942-43 (notice publishing a list of 566 tribal entities that were recognized and eligible, as of Jan. 14, 2015, for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian tribes); id. at 1945 (listing the Poarch Band, previously described as “the Poarch Band of Creek Indians of Alabama”). See also, e.g., http:/Avww. poarchcreekindians.org/westminster/index. html (last visited Sept. 26, 2016).

      . Tr. doc. no. 11-1 (Declaration of Tribal Administrator Edie Jackson), at 2.

      . Tr. doc. no. 5 (Executed Complaint), at 1. Note: The pro se complaint filed by plaintiff on Dec. 22, 2014 (Tr. doc. no. 1) was not signed, and the Magistrate Judge to whom the case originally was assigned ordered her to file an executed copy in accordance with Fed. R. Civ. P. 11(a). That pleading was filed on January 6, 2015.

      . Tr. doc. no. 25 (Report and Recommendation), at 18.

      . See Tr. doc. no. 26 (Plaintiff's Objections to Magistrate's Report and Recommendation); Tr. doc. no. 28 (Order of U.S. District Judge Callie V.S. Granade, adopting Magistrate Judge’s Report and Recommendation); Tr. doc. no. 29 (July 8, 2015 Judgment in Favor of the Poarch Band).

      . Fed. R. Civ. P. 12(b)(1) provides that: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction....”

      . See, e.g., Andrea M. Seielstad, The Recognition and Evolution of Tribal Sovereign Immunity Under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty, 37 Tulsa L. Rev. 661 (2002); Theresa R. Wilson, Nations Within a Nation: The Evolution of Tribal Immunity, 24 Amer. Indian L. Rev. 99 (1999). The principle of tribal sovereignty is implicit in the term chosen by those European governments that established colonies in the “New World” to describe agreements reached between the European settlers and the indigenous people on the North American continent: i.e., "treaties,” a term universally used to describe understandings that are "formally signed, ratified, or adhered to between two nations or sovereigns.” Black’s Law Dictionary . 1640 (9th ed. 2009).

      . McGillivray was born about 1750 in the Creek (Muscogee) town (talwa) of Little Tal-lassee, located near present-day Montgomery. His birth name was either Hippo Ilk Meco ("the Good Child King”) or Hoboi Hili Milco ("Great Beloved Man”). Virginia Pounds Brown & Linda McNair Cohen, Drawing by Stealth: John Trumbull and the Creek Indians 33-35 (Montgomery: New South Books 2016); see also id. at ix (observing that the variant spellings of Creek Indian names of people and places "reflect the wrenching of Muskogean sounds into archaic French, Spanish, and English spellings over several centuries and thus into the research materials that scholars on the subject have left us”).

        .See Edwin C. Bridges, ALABAMA: THE MAKING OF AN AMERICAN STATE 24 (Tuscaloosa: Univ. of Ala. Press 2016) (Map depicting the principal Indian towns and trading paths in the Southeast just before .the American Revolution, with state boundary lines superimposed, and showing that Creeks claimed most of present-day Alabama and Georgia); id. at 24-36 (discussing the Creeks in the land that became the State of Alabama).

      .McGillivray’s mother, Sehoy, belonged to the powerful Creek “Wind Clan” (Hutalgalgi), and his father, Lachlan McGillivray, was a Scot trader. Creek society was matrilineal, which meant that Alexander’s heritage was traced through his mother's family line rather than his father's, and he was considered ethnically to be a Creek. See, e.g., Gregory A. Wasellcov, A Conquering Spirit: Fort Mims and the Redstick War of 1813-1814, at 13-14 (Tuscaloosa: Univ. of Ala, Press 2006). He spent the first six years of his life immersed in Creek society, under the guidance of his mother and members of her clan. His father later moved him into colonial society in Augusta, Georgia, where he learned firsthand the language, manners, and "many of the details of plantation life.... In 1773, Alexander moved to Charleston, South Carolina, where he studied under his cousin Reverend Farquhar McGillivray and then briefly took an apprenticeship at the countinghouse of Samuel Elbert in Savannah, Georgia.” Andrew K. Frank, Alexander McGillivray, Encyclopedia of Alabama, http ://www. encyclopedia ofalabama.org/article/h-2313 (ellipsis supplied) (last visited Oct. 4, 2016).

      . Kathryn H. Braund, The Creeks Take New York, 122" Alabama Heritage 10, Fall 2016.

      . Brown and Cohen, supra note 8, at 31.

      . Christina Snyder, Slavery in Indian Country: The Changing Face of Captivity in Early America 163 (Cambridge: Harvard Univ. Press 2010) (ellipsis and alteration in original, footnote omitted).

      . Braund’s statement that the “exclusive right of the United States to treat with Indian tribes (as opposed to individual states) was embedded in the Constitution” is a shorthand reference to Article I’s Commerce Clause, which provides that "Congress shall have ' Power"... To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes ...” U.S. Const, art. I, § 8, cl. 3 (1788). That is the only mention of Indian tribes in the Constitution. Individual Indians are referenced in art. I, § 2, cl. 3, which addresses the apportionment of elected representatives and direct taxes among the several states "according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

      . For example, § 1-1-1 of the Tribal Code states that the "sovereign immunity of the [Poarch Band] is not waived by any section, part, word, or phrase contained in this Tribal Code or amendments thereto.” Tr. doc, no. 11 (Poarch Band’s Brief in Support of Motion to Dismiss), at 10 (alteration supplied). Moreover, § 33-8-9 of the Tribal Employment Rights Code states that: "Nothing contained in this Title shall be construed as a waiver by the [Poarch Band] of sovereign immunity from uncontested lawsuits or as consent by the [Poarch Band] to the bringing of any action against the [Poarch Band], its officers, agents, employees, departments or business entities or enterprises.” Tr. doc., no. 11 (Poarch Band’s Brief in Support of Motion to Dismiss), at 11 (alterations supplied).

      . Brief of Defendant-Appellee Poarch Band (submitted in response to the brief drafted by Appellant’s appointed counsel), at 11.

      . See Additional Principal Brief for Plaintiff-Appellant, at 6-10.

      . Title VII has been amended several times since its enactment, and the current definition of the term "employer" reads as follows:
      ' (b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
      42 U.S.C. § 2000e(b) (emphasis supplied).

      . See, e.g., Additional Principal Brief for Plaintiff-Appellant, at 7 ("an affirmative act”). Notably, only two of the federal statutes prohibiting workplace discrimination on the basis of an employee's protected characteristic expressly exclude Indian tribes from their definition of the term "employer”: i.e., as discussed infra, Title VII of the Civil Rights Act of. 1964; and, Title I of the Americans with Disabilities Act of 1990, which defines the term "employer” as follows:
      (A) In general. The term “employer" means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchap-ter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.
      (B) Exceptions. The term "employer" does not include—(i) The United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or (ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of Title 26.
      42 U.S.C. § 12111(5) (boldface emphasis in original, italicized emphasis supplied). All other federal employment discrimination statutes are silent on the question of whether Indian tribes are included within the definition of the term “employer” (and, therefore, whether the statutes apply to tribal employers).

      . See the textual quotation preceding note 16, supra (Pub. L. No. 88-352, § 701(b), 78 Stat. 253-54 (1964) (stating that "[t]he term 'employer' ... does not include ... a State or political subdivision thereof") (ellipses supplied)).

      . The amended provision, which now is codified at 42 U.S.C. § 2000e(b), reads as follows:
      The term "employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such tern does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers. [Emphasis supplied.]

      . The amended definition of the term "employee,” as now codified at 42 U.S.C. § 2000e(f), reads as follows:
      (f) The term "employee” means an individual employed by an employer, except that the term "employee” shall not include any person elected to public office in any State or 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. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. [Emphasis supplied.]

      .The Equal Employment Opportunity Act of 1972 expanded Title VII's original definition of the term "person”—i.e., “The term ‘person’ includes one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcies, or receivers" (Pub. L. No. 88-352, § 701(a), 78 Stat. 253 (1964))—to include "governments, governmental agencies, [and] political subdivisions.” Pub. L. No. 92-261, § 2(1), 86 Stat. 103-113 (1972) (alteration supplied). The amended definition now reads as follows: “The term "person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, coiporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.” 42 U.S.C. § 2000e(a) (emphasis supplied).

      .The Eleventh Amendment provides that: "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.” U.S. Const, amend. XI (1795). See also, e.g., Hans v. Louisiana, 134 U.S. 1, 13-15, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (holding that the Eleventh Amendment not only repudiated the Supreme Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), but restored the original understanding of the persons who drafted the Constitution—in Hamilton's phrase, "the plan of the convention”—that a state could not be sued without its consent); The Federalist, No, 81, at 487 (Alexander Hamilton) (Clinton Ros-siter ed., 1963) (2003 reprint).

      . "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const, amend. XIV, § 5 (1868).

      . Additional Principal Brief for Plaintiff-Appellant, at 12-13.

      . Several district courts also have held that Congress has not abrogated tribal sovereign immunity under the ADEA. See, e.g., Bales v. Chickasaw Nation Industries, 606 F.Supp.2d 1299, 1308 (D. N.M. 2009) ("Congress did not abrogate tribal sovereign immunity when it enacted the ADEA.”); Colmar v. Jackson Band of Miwuk Indians, No. CIV S-09-0742 DAD, 2011 WL 2456628 (E.D. Cal. June 15, 2011) (holding in the context of an ADEA claim that an Indian tribe’s sovereign immunity had not been abrogated by Congress, and subject matter jurisdiction did not exist).

      . Additional Principal Brief for Plaintiff-Appellant, at 18.