Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MIKE ALLEN,
Plaintiff - Appellant,
v. No. 23-3092 (D.C. No. 5:22-CV-04049-EFM-KGG) KRAIG KNOWLTON; ANGIE KRAHE, (D. Kan.) in their official capacities,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________
Mike Allen appeals the dismissal of his pro se action claiming discriminatory
hiring by Kraig Knowlton, Director of Personnel Services, and Angie Krahe,
Recruiter for the Department of Commerce, in their official capacities as officers for
the State of Kansas. The district court dismissed the action on Eleventh Amendment
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 2
immunity grounds. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
district court’s judgment.
I. BACKGROUND - COMPLAINT ALLEGATIONS
Mr. Allen is 58 years old and has been seeking employment with the State of
Kansas since 2010. He says he is “overqualified for positions that align with his
discipline” (he has a PhD in Public Administration), but Mr. Knowlton has refused to
return his calls. ROA at 13. He also alleges that Mr. Knowlton negatively
influenced state recruiters, including Ms. Krahe, who would not interview him. He
therefore sued Mr. Knowlton and Ms. Krahe in their official capacities, claiming they
violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623.
For relief, he sought money damages, averring that his “prospects for employment
with the state are null.” ROA at 11.1
1 Mr. Allen cited other federal statutes, and attached a Charge of Discrimination alleging both age and disability discrimination, but his complaint invoked only the ADEA, see ROA at 11 (“Age discrimination in employment is unlawful (29 U.S.C. §[] 623.”). On appeal, he seemingly acknowledges that he raised only ADEA violations. See Aplt. Br. at 2 (“Petitioner sought [r]elief at the District Court based on discrimination in employment on the basis of age.”). Yet he asks that, “[i]f possible,” his complaint be “extended to other federal laws,” id. at 5, specifically the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, Title VII, 42 U.S.C. § 2000e-2, and apparently 42 U.S.C. § 1983. Even if we were to consider these issues, however, they would be unavailing. The district court explained that to the extent Mr. Allen asserted an ADA claim merely by alleging he was disabled, any such claim was barred by the Eleventh Amendment. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001). The district court also explained that his allegations of age discrimination are not covered by Title VII. See 42 U.S.C. § 2000e-2; Kremer v. Chem. Constr. Corp., 456 U.S. 461, 465 n.4 (1982). The district court explained that the Eleventh Amendment bars his § 1983 2 Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 3
On Defendants’ motion, the district court dismissed the action. The court
determined the Eleventh Amendment barred Mr. Allen’s ADEA claim because he
named Mr. Knowlton and Ms. Krahe in their official capacities and sought only
money damages. The court recognized that claims for prospective injunctive relief
are excepted from the Eleventh Amendment bar, but it determined that Mr. Allen did
not seek prospective injunctive relief.
II. DISCUSSION
We review de novo the district court’s dismissal on Eleventh Amendment
immunity grounds. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017). The
Eleventh Amendment precludes damages claims against state officers in their official
capacities. See id. at 1278.2 “When a suit alleges a claim against a state official in
his official capacity, the real party in interest . . . is the state, and the state may raise
the defense of sovereign immunity under the Eleventh Amendment.” Callahan v.
Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (quotations omitted). An Eleventh
Amendment immunity defense challenges the district court’s subject matter
jurisdiction. Harris v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001). Absent a
waiver of sovereign immunity or an effective congressional abrogation of it, the
claims as well. See Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010). 2 The Eleventh Amendment provides: “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.
3 Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 4
Eleventh Amendment shields state officials, see Ross v. Bd. of Regents of Univ. of
New Mexico, 599 F.3d 1114, 1117 (10th Cir. 1998), unless the claim “seeks only
prospective injunctive or declaratory relief against state officials for an ongoing
violation of federal law,” Callahan, 471 F.3d at 1159 (quotations omitted).
Kansas has not waived its sovereign immunity, see Ellis v. Univ. of Kan. Med.
Ctr., 163 F.3d 1186, 1195 (10th Cir. 1998), and the ADEA did not abrogate the
states’ sovereign immunity from suits by individuals, Kimel v. Fl. Bd. of Regents,
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Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MIKE ALLEN,
Plaintiff - Appellant,
v. No. 23-3092 (D.C. No. 5:22-CV-04049-EFM-KGG) KRAIG KNOWLTON; ANGIE KRAHE, (D. Kan.) in their official capacities,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________
Mike Allen appeals the dismissal of his pro se action claiming discriminatory
hiring by Kraig Knowlton, Director of Personnel Services, and Angie Krahe,
Recruiter for the Department of Commerce, in their official capacities as officers for
the State of Kansas. The district court dismissed the action on Eleventh Amendment
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 2
immunity grounds. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
district court’s judgment.
I. BACKGROUND - COMPLAINT ALLEGATIONS
Mr. Allen is 58 years old and has been seeking employment with the State of
Kansas since 2010. He says he is “overqualified for positions that align with his
discipline” (he has a PhD in Public Administration), but Mr. Knowlton has refused to
return his calls. ROA at 13. He also alleges that Mr. Knowlton negatively
influenced state recruiters, including Ms. Krahe, who would not interview him. He
therefore sued Mr. Knowlton and Ms. Krahe in their official capacities, claiming they
violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623.
For relief, he sought money damages, averring that his “prospects for employment
with the state are null.” ROA at 11.1
1 Mr. Allen cited other federal statutes, and attached a Charge of Discrimination alleging both age and disability discrimination, but his complaint invoked only the ADEA, see ROA at 11 (“Age discrimination in employment is unlawful (29 U.S.C. §[] 623.”). On appeal, he seemingly acknowledges that he raised only ADEA violations. See Aplt. Br. at 2 (“Petitioner sought [r]elief at the District Court based on discrimination in employment on the basis of age.”). Yet he asks that, “[i]f possible,” his complaint be “extended to other federal laws,” id. at 5, specifically the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, Title VII, 42 U.S.C. § 2000e-2, and apparently 42 U.S.C. § 1983. Even if we were to consider these issues, however, they would be unavailing. The district court explained that to the extent Mr. Allen asserted an ADA claim merely by alleging he was disabled, any such claim was barred by the Eleventh Amendment. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001). The district court also explained that his allegations of age discrimination are not covered by Title VII. See 42 U.S.C. § 2000e-2; Kremer v. Chem. Constr. Corp., 456 U.S. 461, 465 n.4 (1982). The district court explained that the Eleventh Amendment bars his § 1983 2 Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 3
On Defendants’ motion, the district court dismissed the action. The court
determined the Eleventh Amendment barred Mr. Allen’s ADEA claim because he
named Mr. Knowlton and Ms. Krahe in their official capacities and sought only
money damages. The court recognized that claims for prospective injunctive relief
are excepted from the Eleventh Amendment bar, but it determined that Mr. Allen did
not seek prospective injunctive relief.
II. DISCUSSION
We review de novo the district court’s dismissal on Eleventh Amendment
immunity grounds. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017). The
Eleventh Amendment precludes damages claims against state officers in their official
capacities. See id. at 1278.2 “When a suit alleges a claim against a state official in
his official capacity, the real party in interest . . . is the state, and the state may raise
the defense of sovereign immunity under the Eleventh Amendment.” Callahan v.
Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (quotations omitted). An Eleventh
Amendment immunity defense challenges the district court’s subject matter
jurisdiction. Harris v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001). Absent a
waiver of sovereign immunity or an effective congressional abrogation of it, the
claims as well. See Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010). 2 The Eleventh Amendment provides: “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.
3 Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 4
Eleventh Amendment shields state officials, see Ross v. Bd. of Regents of Univ. of
New Mexico, 599 F.3d 1114, 1117 (10th Cir. 1998), unless the claim “seeks only
prospective injunctive or declaratory relief against state officials for an ongoing
violation of federal law,” Callahan, 471 F.3d at 1159 (quotations omitted).
Kansas has not waived its sovereign immunity, see Ellis v. Univ. of Kan. Med.
Ctr., 163 F.3d 1186, 1195 (10th Cir. 1998), and the ADEA did not abrogate the
states’ sovereign immunity from suits by individuals, Kimel v. Fl. Bd. of Regents,
528 U.S. 62, 92 (2000). Neither did Mr. Allen seek prospective injunctive relief. His
complaint sought only money damages because he assessed that his “prospects for
employment with the state [were] null.” ROA at 11.
Mr. Allen’s pro se opening brief does not engage with any of these issues. See
Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first
task of an appellant is to tell us why the district court’s decision was wrong.”); id. at
1369 (affirming dismissal of claim because appellant’s brief failed to adequately
challenge the district court’s basis for dismissal). Although we liberally construe his
pro se materials, we “cannot take on the responsibility of serving as [his] attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Mr. Allen’s only relevant argument is that he could not request prospective
injunctive relief while also seeking monetary relief. But he cites no authority to
support that argument, and our cases say otherwise. See Guttman v. Khalsa, 669 F.3d
1101, 1125, 1127-29 (10th Cir. 2012) (recognizing plaintiff sought both money
4 Appellate Case: 23-3092 Document: 010111000244 Date Filed: 02/14/2024 Page: 5
damages and prospective injunctive relief). We discern no error in the district court’s
dismissal based on the Eleventh Amendment.3
III. CONCLUSION
Accordingly, the district court’s judgment is affirmed.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
3 Mr. Allen simultaneously filed in this court his reply brief and a motion for injunctive relief, asking this court to “award him [a] Doctoral Degree’s preference for employment at the Kansas Office of Personnel Services and its affiliated hiring agencies,” Mot. for Inj. at 2. Without objection, the motion was construed as a supplement to his reply brief. We do not consider new issues and arguments raised in a reply brief, and we decline to do so here, particularly where Mr. Allen did not seek prospective injunctive relief in his complaint. See Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016).