McKlintic v. 36th Judicial Circuit Court , 508 F.3d 875 ( 2007 )

BRIGHT, Circuit Judge,

concurring.

I concur in the court’s opinion. I agree that we are bound by this Court’s holding in Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir.2007) (holding that the self-care provision of the Family and Medical Leave Act (“FMLA”) did not abrogate the states’ Eleventh Amendment immunity). See also Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 879-80 (7th Cir.2006); Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 405 (6th Cir.2005); Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1165 (10th Cir.2003). But see Montgomery v. Md., 72 Fed.Appx. 17, 18 (4th Cir.2003) (holding that in light of Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), “sovereign immunity does not protect the states in FMLA actions”).

I write separately to observe that an argument can be made that the self-care provision of the FMLA permits a suit against the State. This issue therefore needs resolution by the United States Supreme Court.