Chapter 8:
Limitations on Relief
This chapter will explore the contours of the primary limitations on suing states, state subdivisions, and state officials in federal court. The first section surveys the Eleventh Amendment and focuses on important recent developments in this area. It covers the abrogation and waiver of sovereign immunity and the availability of prospective injunctive relief under the Ex Parte Young doctrine. The second section discusses the scope of absolute and qualified immunity in Section 1983 suits against public officials in their individual capacities. The final section covers limitations imposed on Section 1983 claims against municipal agencies and governments.
I. Enforcing Federal Rights Against States and State Officials
At least since the passage of the Social Security Act in 1935, the federal government has become a major source of programs and funding to assist low-income individuals and other persons with needs that cannot be met without public intervention. Congress has enacted cash assistance programs, medical care, food stamps, education, housing, and numerous other programs. In many instances, these programs were implemented through grants to the states, which were responsible for their administration and obligated to operate them in compliance with federal law.
I.A. Enforcing Federal Rights Against States
In 1968, the U.S. Supreme Court decided the landmark case of King v. Smith /1/, a suit brought under 42 U.S.C. § 1983 which challenged a state regulation under the Aid to Families with Dependent Children program on the grounds that it conflicted with federal law./2/ The King Court recognized the right to enforce federal standards against state entities and ordered state officials to operate the federally funded program in accordance with federal law. Since then, there have been thousands of federal cases against states to enforce federal requirements in federally funded programs.
In addition to benefit programs, Congress has enacted a series of laws prohibiting discrimination based on race, ethnicity, religion, gender, disability, and age. Most of these laws either have an express provision allowing suits against states or have been interpreted to allow such suits./3/ Federal labor laws protecting employees have been made applicable to the states. /4/ As a result, the ability to enforce federal rights against states has been a key element in the protection of low-income persons and population groups that have been the target of discriminatory practices. That protection has been eroded, but not eliminated, by a series of recent decisions by the Supreme Court acting under the mantle of sovereign immunity.
I.B. Overview of the Eleventh Amendment
The Eleventh Amendment to the Constitution bars suits in federal court against states by citizens of other countries and other states./5/ In 1890 the Supreme Court held that the Eleventh Amendment also prohibited such suits by citizens of the defendant’s state./6/ As a result, private parties may not sue a state or state agency by name in federal court unless Congress validly abrogates state Eleventh Amendment immunity or the state consents to be sued. /7/ What constitutes a state agency depends on a number of factors that are applied on the basis of state law. /8/ The Eleventh Amendment does not, however, bar suits against local governments. /9/
Under Ex parte Young, private parties can sue state officials in their official capacity to enforce federal laws and regulations, but only for prospective injunctive relief. /10/ Accordingly, there must be an ongoing violation of federal law to support injunctive relief./11/ Such relief may include notice to the plaintiff class of the availability of remedies under state law. /12/ No damages are recoverable in Young suits, but prospective relief may require the incidental expenditure of state funds. /13/
State officials may be sued for damages in their individual capacity for violations of federal constitutional or statutory rights committed in the course of official duties but are entitled to claim qualified immunity./14/ Qualified immunity bars recovery insofar as the official’s conduct “did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” /15/
States and state officials may not be sued in their official capacity regardless of the relief sought, in federal court on claims arising out of state law./16/ Federal courts have supplemental jurisdiction to hear state-law claims against state officials sued in their individual capacity if there are federal claims that arise from the same subject matter and give the federal court jurisdiction./17/ State immunity rules apply to claims under state law./18/ The provision in 28 U.S.C. § 1367(d), which generally tolls the statute of limitations on supplemental claims dismissed in federal court, does not apply to dismissals of state claims against a state or state agency on Eleventh Amendment grounds./19/ Tolling does apply to counties which do not have Eleventh Amendment immunity. /20/
States have no sovereign immunity protection if the proceeding is initiated or prosecuted by the federal government. /21/ This applies even if the federal government is seeking recovery of damages on behalf of an individual, and damages in a suit by the individual would be barred by the Eleventh Amendment. /22/
I.C. Abrogation of State Sovereign Immunity by Congress
Congress has power to abrogate state sovereign immunity when it does so unequivocally and pursuant to a grant of constitutional authority. If the abrogation is constitutionally valid, states may be sued in federal court in their own name for violations of the statutes to which the abrogation applies, and plaintiffs may recover damages against the state if the underlying statute provides a damage remedy. Since 1996, however, cases against states based on abrogation of immunity and the recovery of damages against states for violations of federal law have been sharply limited.
Before 1996, the Supreme Court held that Congress had the authority to abrogate immunity in the course of legislating under any of its broad powers under Article I of the Constitution, including the commerce clause, copyright powers, and bankruptcy./23/ In Seminole Tribe of Florida v. Florida, however, the Court declared that Congress’ power to abrogate Eleventh Amendment immunity of states to suits in federal courts is limited to matters arising under the legislative enabling clause of Section 5 of the Fourteenth Amendment. /24/ The Court held that Congress had no power to abrogate immunity under the Indian commerce clause involved in Seminole and added that it lacked such power under any other Article I provision. The Court also held that Congress must clearly express its intention to abrogate state immunity.
Beginning with City of Boerne v. Flowers, the Court narrowed the legislative authority of Congress under Section 5 of the Fourteenth Amendment and thereby further limited the authority of Congress to abrogate state immunity./25/ The Court subsequently held that Congress lacked Fourteenth Amendment authority to enact the Age Discrimination in Employment Act./26/ It also held that Congress exceeded its legislative powers under the Fourteenth Amendment in providing for damages against state governments for violation of the employment provisions of Title I of the Americans with Disabilities Act. /27/
Recent decisions have, however, allowed plaintiffs to proceed under certain narrow circumstances. In Nevada Department of Human Resources v. Hibbs, the Court reaffirmed its earlier decisions but held that Congress did have Fourteenth Amendment authority to waive state immunity to suit under the Family Medical Leave Act./28/ Because the Family Medical Leave Act is based on underlying concerns about sex discrimination, the Court distinguished the Family Medical Leave Act from the statutes at issue in Kimel and Garrett. Sex discrimination is subject to higher scrutiny under the equal protection clause than discrimination based on age or disability, to which rational basis review applies./29/ In Tennessee v. Lane, the Court introduced an “as applied” test and decided that state governments may be sued for violating Title II of the Americans with Disabilities Act as it applied to claims involving the fundamental right of access to the courts./30/ In 2006, the Court held that Congress had Section 5 power to abrogate immunity from damage suits against state prisons under Title II of the Americans with Disabilities Act, at least to the extent that such lawsuits challenge conduct that is also claimed to violate the Fourteenth Amendment. /31/
The Court has permitted bankruptcy proceedings, finding them, at the core, to involve in rem jurisdiction./32/ In Central Virginia Community College v. Katz, the Court acknowledged that statements in Seminole Tribe reflected an assumption that the holding in that case would apply to the Bankruptcy Clause. /33/ However, a five-member majority concluded that this assumption was erroneous and rejected the sovereign immunity defense advanced by the state agency. /34/
Taken together, the effect of these decisions is that, if there is no express waiver of immunity or no Fourteenth Amendment authority for abrogation, and the state did not itself waive immunity, a suit may not be brought in federal court against a state or state agency, and retroactive monetary relief against state officials sued in their official capacity is barred.
Although enforcement of federal rights against states has been limited, a number of ways remain in which private litigation can succeed in enforcing federal rights against state governments. These are discussed below.
I.D. Waiver of Immunity
There are two recognized ways that states have waived their immunity: by legislation and by litigation.
I.D.1. Federally Mandated Waiver of Immunity Under Congressional Spending Power
The Supreme Court has reaffirmed that Congress may, in exercising its spending powers, condition its grant of funds to the states upon their taking certain actions that Congress could not require them to take directly, and that acceptance of the funds may entail an agreement to the condition. /35/ Consent to suit in federal court is one such condition that Congress may impose. Mere receipt of federal funds alone cannot establish that state consent to suit in federal court. /36/ Instead, there must be a clear warning to the states of the consequences of accepting the money. /37/
A number of cases, however, have found a waiver even though the statutory language supporting a waiver is not phrased expressly in terms of waiver or abrogation of immunity. In Illinois Bell Telephone Company v. WorldCom Technologies Inc., for example, the state agency voluntarily undertook to act as part of a federal regulatory scheme./38/ The applicable statute provided for federal court review of the decisions of the state agency but did not expressly provide that the state agency could be made a party to the proceeding. The Seventh Circuit held that the agency consented to being a party by acting as a regulator, but the Fourth Circuit disagreed in a subsequent case./39/ The Supreme Court granted certiorari in both cases but dismissed the Seventh Circuit case as improvidently granted and decided the Fourth Circuit case without reaching the waiver issue./40/
Congress has expressly abrogated state immunity for claims arising under four important federal laws enacted under the spending clause: 42 U.S.C. § 2000d-7 abrogates state immunity for suits under Title VI of the Civil Rights Act (discrimination based on race and ethnicity), the Age Discrimination In Employment Act, Title IX of the Education Amendments of 1972 (gender discrimination in education), and Section 504 of the Rehabilitation Act of 1974 (discrimination based on disability). Although expressed in terms of abrogation, Section 2000d-7 applies to the states as a waiver of immunity arising from a state accepting federal funds./41/ Other federal statutes contain abrogation provisions and each statute should be examined to determine whether it contains language that can be construed to constitute consent to suit against the state as a condition of accepting federal money. If sovereign immunity is waived under statutes enacted as part of the spending power, a private plaintiff may sue the state or state agency as a named defendant and may recover damages to the extent that they are allowed by the underlying statute; the private plaintiff also may obtain injunctive and other relief.
Laws that are enacted under the spending clause and expressly waive state immunity have a wide applicability to state governments. Although the four laws covered by abrogation in Section 2000d-7 apply only to “programs or activities” that receive federal funds, almost all state agencies receiving federal funds should be covered by these laws. Regulations issued in 2005 give the phrase a fairly broad definition./42/ The preamble to the regulations says, for example, that if a state health agency receives any federal funding, all of its operations are subject to the antidiscrimination requirements. /43/ Thus, all activities of a state agency receiving any federal funds would be covered by the antidiscrimination provisions of Section 2000d-7.
Nonetheless, the Second Circuit limited application of Section 2000d-7 in cases involving Section 504. /44/ An effective waiver, the Second Circuit held, requires an intentional relinquishment of a known right. When the state received the funds at issue in the suit, Seminole had not been decided and Title II of the Americans with Disabilities Act was understood to abrogate the state’s sovereign immunity under commerce clause authority. Therefore, state acceptance of federal funds could not have constituted a decision to waive immunity as “by all reasonable appearances state sovereign immunity had already been lost.” /45/
The result of this approach to waiver is that in a Circuit following Garcia, if a state agreed to the waiver condition before March 27, 1996, the date of the Seminole opinion, sovereign immunity is not waived. Some cases indicate an even later cutoff date depending on the statute involved. For example, the Fifth Circuit appears to apply Garcia in claims under Section 504 for disability discrimination to any acceptance of federal funds before May 2, 2001,/46/ the date the Supreme Court decided Garrett./47/ In Garrett, the Court ruled that the Americans with Disabilities Act did not validly abrogate state immunity to damage suits for employment discrimination based on disability./48/ The holding in Garcia has been rejected by other courts and, at any rate, has time-limited applicability. /49/
There is one further potential limitation on the power of Congress to mandate waiver of immunity under the spending clause. If the financial or other inducement offered by Congress is so coercive that pressure turns into compulsion, the abrogation of immunity exceeds congressional power./50/ To date, no waiver of immunity provision has been declared coercive. In Jim C. v. United States the potential loss of federal funds was $250 million, 12 percent of the State’s annual education budget. /51/ The court described replacing these funds as “politically painful, but we cannot say that it compels Arkansas’s choice.” /52/ This decision is significant because, with the exception of the Medicaid program, few, if any, federal grant programs exceed the amount of aid to education. /53/
I.D.2. Waiver of Immunity by Litigation
The Supreme Court has unanimously held that removal of a case by a state from state court to the federal court waives Eleventh Amendment immunity. /54/ After stating this broad principle, however, the Court limited its holding to state law claims with respect to which the state explicitly waives immunity from state court proceedings. While the impact of the case is uncertain, several cases have applied the holding to federal claims as well. /55/
By the time the Lapides case reached the Supreme Court, the only remaining valid claims were two state-law claims as to which state law waived immunity in suits in state courts. The Supreme Court noted that the district court had authority to hear the state claims—the case was not moot—although the Court also strongly suggested that the district court might wish to remand the claims to the state court.
The Court then held that waiver by litigation conduct was based on the need to “avoid inconsistency, anomaly, and unfairness, and not upon a State’s actual preference or desire, which might, after all, favor selective use of ‘immunity’ to achieve litigation advantages.”/56/ For much the same reason, the question of waiver by litigation conduct is a federal question, which looks to fairness and not solely to provisions of state law on waiver of immunity. Accordingly, the Court overruled Ford Motor Co. v. Department of the Treasury of Indiana, which refused to allow a waiver by litigation conduct unless expressly authorized by state law. /57/
In certain circumstances in some federal circuits, if a state defendant appears and litigates without raising a sovereign immunity defense, it may be held to have waived the defense. Where, for example, the state agency litigated the case through discovery and did not raise the issue of sovereign immunity until the day of trial, the Ninth Circuit has held that the state agency waived any claim to immunity. /58/ Other courts allowed a sovereign immunity defense to be raised at almost any stage of the case. /59/ In a case decided on other grounds, the Supreme Court stated in a footnote that “[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial power, and therefore can be raised at any stage of the proceedings, we have recognized that it is not coextensive with the limitation on judicial power in Article III.” /60/ Commenting on this statement, the Fifth Circuit observed that a state may waive immunity other than by an express renunciation, noting that
[c]ourts have found waiver in two general varieties of cases: where the state asserted claims of its own or evidenced an intent to defend the suit against it on the merits. The common thread among these cases is that the state cannot simultaneously proceed past the motion and answer stage to the merits and hold back an immunity defense. /61/
This reasoning is supported by the rationale in Lapides that avoiding unfairness underlies the waiver of immunity. In the removal context, states had been removing claims that could be asserted against it in state court and then had been moving to dismiss them on Eleventh Amendment grounds. Similarly, it is unfair for a state to litigate on the merits without actively asserting its Eleventh Amendment defense and then, if it loses or is in danger of losing on the merits, to move to dismiss on grounds of sovereign immunity. Lapides also holds that the conduct of the litigation by the state attorney general may constitute waiver even though the state constitution provides that immunity may be waived only by statute. /62/
I.E. Prospective Injunctive Relief Under Ex Parte Young
Ever since Ex parte Young, prospective relief in federal courts has been available to enforce federal rights by suing a state official, usually the official in charge of the agency responsible for the violation, even absent a valid Congressional abrogation of state immunity. /63/
I.E.1. The Continued Availability of a Remedy
Provisions of the Constitution or federal laws may be enforceable prospectively against the states under Young./64/ Prospective relief is an injunction, and the violation of federal law must be ongoing to warrant an injunction. /65/ Some courts also allow declaratory judgments as ancillary to injunctive relief. /66/ Young suits should expressly designate the defendant official as being sued in her official capacity. Neither the state nor a state agency can be named as the defendant. A claim may be asserted against the official in the official’s individual capacity, including damages, but such claims are subject to a defense of qualified immunity. /67/
The Supreme Court reaffirmed Ex parte Young in Seminole and in its subsequent state immunity decisions./68/ Indeed, the availability of the Young remedy is the Court’s answer to the argument that states are free to disregard federal law. In Seminole, the majority stated that “[t]his argument wholly disregards other methods of ensuring the States’ compliance with federal law; ...an individual can bring suit against a state officer in order to ensure that the officer’s conduct is in compliance with federal law ....” /69/
In Verizon Maryland Inc. v. Public Service Commission of Maryland the Court explicitly adopted a simple test for the application of Young, which should make its application easier in the lower courts. /70/ It stated that “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” /71/ Since the prayer for relief asked that the commissioners be enjoined from enforcing an order in contravention of federal law, the test was met. The addition of a claim for declaratory relief did not impose on the state any monetary loss for past breach of its duty. The Court also rejected a claim that Young was inapplicable because the commission’s decision was probably consistent with federal law: “[T]he inquiry into whether suit lies under Ex Parte Young does not include an analysis of the merits of the claim.” /72/
In 2004, the Court ruled that Young suits that are resolved in a consent decree may be enforced by a federal court./73/ The consent decree “must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.” The Court also rejected the state’s argument that before a federal court can issue an order requiring a state defendant to take steps to be in compliance, it must first find an ongoing violation of federal law. /74/
Many federal statutes create liability only on an entity, such as a state or local government./75/ Federal statutes also impose such liability on recipients of federal funds./76/ States have argued that a Young suit naming a state officer could not be brought because the officer, who must be named as defendant, had no liability. /77/ The Supreme Court twice rejected this limitation on Young. /78/ In Verizon, the statute in question referred to determinations of state public service commissions. Plaintiffs sued both the commission and the commissioners in their official capacities. The Court, with no discussion, stated that “[w]e also conclude that the doctrine of Ex parte Young permits Verizon’s suit to go forward against the state commissioners in their official capacities.” /79/
In Garrett, which barred recovery of damages against states under Title I of the Americans with Disabilities Act, the Court expressly approved use of Young to enforce Title I by injunctive relief against states engaging in employment discrimination:
Our holding here that Congress did not validly abrogate the State’s sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young. /80/
Cases seeking to apply Young may be brought in several different ways. First, suits for prospective relief may be brought directly under a federal statute that creates a private cause of action. /81/ The private cause of action is either explicit or implicit to the extent that implied causes of action are still viable. /82/ Second, suits for prospective relief may be brought under 42 U.S.C. § 1983, which creates a federal cause of action for violation of “rights” secured by the federal laws and the Constitution. /83/ Third, in some cases such as those involving claims of federal preemption, the suit is simply brought under the federal question jurisdiction of the federal courts. /84/
There are, however, limits to the enforcement of federal rights under Young. In Seminole Tribe, the Court held that when Congress creates a comprehensive remedial scheme with limitations imposed on the enforcement of a particular federal right, courts may refuse to “supplement” that scheme with judicial enforcement under Ex parte Young. /85/ In Seminole Tribe itself, the Court found that a statutory system of mandated conferences and mediation, culminating in a suit against the state to a transfer of decision-making power from the state to the federal government was sufficient to indicate that Congress did not intend suits under the Ex parte Young theory. The Court found this even though the statute at issue did not permit any injunctive relief or damages, as does Section 1983. /86/ In addition, it has been held that Young applies only “when the named defendant state officials have some connection with the enforcement of the [challenged] act and ‘threaten and are about to commence proceedings’ to enforce the unconstitutional act.” /87/
Another possible limitation on Young that has largely failed is the “special state sovereignty” claim upheld by the Court in Idaho v. Coeur d’Alene Tribe of Idaho. /88/ That case involved a dispute between the state and a Native American tribe as to title to a waterway. The Court found that the interest of the state in title to its land was such a special sovereignty interest that the Young was inapplicable./89/ The case has not generally been expanded beyond its facts, even when land was involved. The courts held, for example, that the administration of a welfare program did not implicate a special state sovereignty interest. /90/
I.E.2. Rejection of the Assault on Ex Parte Young
Encouraged by the recent sovereign immunity cases, some states began a wholesale attack on the ability of private parties to enforce federal laws under Young. The first decision adopting this challenge was the district court decision in Westside Mothers v. Haveman. /91/ That decision was reversed by the Sixth Circuit /92/ and rejected by the Fourth. /93/
Westside Mothers was a routine suit under 42 U.S.C. § 1983 to enforce the federal Medicaid law provisions that require certain screening and services to be provided to eligible children. The suit was brought against state officials responsible for administering the Michigan Medicaid program and sought only prospective injunctive relief. Medicaid is enacted under the spending clause; although states are free not to participate, all states do participate.
The district court in Westside Mothers ruled that the existing precedents enforcing the Medicaid statute were no longer good law. At the heart of the decision is a conclusion (1) that Young applies only to violations by state officials of the federal Constitution or federal laws and (2) since the Medicaid program was enacted under the spending clause, the federal requirements are not binding federal laws because the states are free not to participate in the Medicaid program. Rather, the court reasoned, the nature of the programs a contract between the federal and state governments and in Ex Parte Young the Supreme Court did not authorize suits for breach of contract against state officers.
The Sixth Circuit rejected this conclusion and noted that the Supreme Court in Pennhurst
makes clear that it is using the term “contract” metaphorically to illuminate certain aspects of the relationship formed between a state and the federal government....It does not say that Medicaid is only a contract....It did not limit the remedies to common law contract remedies or suggested [sic] that normal federal question doctrines do not apply....Binding precedent has put the issue to rest. The Supreme Court has held that the conditions imposed by the federal government pursuant to statute upon states participating in Medicaid and similar programs are not merely contract provisions; they are federal laws. /94/
I.F. Interlocutory Appeals
One major factor to consider in naming defendants who may assert sovereign immunity is that in federal court a state or state official claiming immunity has a right to an interlocutory appeal if the district court rejects the immunity defense. /95/ The general rule is that the filing of the appeal ousts the district court of jurisdiction as to those defendants appealing on immunity grounds, at least as to claims covered by the immunity defense. /96/ If this occurs, proceedings against the appealing defendants come to a halt, and the district court has discretion to stay or limit proceedings against other defendants./97/ To date, courts have been unwilling to broaden this type of interlocutory appeal to encompass the question of whether violations of federal laws may be challenged under Section 1983. /98/
One exception to staying proceedings against the appealing state defendant is recognized in many circuits. If the district court certifies in writing that the immunity appeal is frivolous, proceedings in the district court may continue. /99/ The Supreme Court approved this procedure. /100/ The interlocutory appeal, nonetheless, proceeds to decision in the Court of Appeals.
I.G. Suits in State Courts
In Alden v. Maine, the Supreme Court held that, under the structure of the federal Constitution and historic principles of sovereign immunity, Congress could not authorize suits against states in state courts on federal claims without the consent of the state to be sued, except when Congress acted pursuant to its Fourteenth Amendment powers. /101/ Because the decision rests on Eleventh Amendment jurisprudence, mandated waiver of immunity in state courts under the spending clause power would seem to be permissible, but the issue is not free of doubt.
Alden merely held that a state court need not enforce federal laws; Alden does not prevent it from doing so. Thus, a careful examination of state statutes may reveal authority in state court to enforce federal claims against the state. In Alden, the Maine Supreme Court found that the state had not consented to a suit for overtime pay because state law expressly excluded state employees from overtime pay. But, the Iowa Supreme Court reached the opposite conclusion in Anthony v. State. /102/ State agencies, the court found, are employers under the Iowa Wage Payment Collection Law. The court found the collection law to contain express consent to sue in Iowa courts for purposes of recovering any compensation owed to plaintiff. Overtime pay due under the Fair Labor Standards Act falls under the law as compensation. /103/
Other state courts express a restrictive approach to state statutes that waive state immunity. The most restrictive approach is that of the Nebraska Supreme Court in King v. State. /104/ That case announced that statutes waiving immunity must be clear in intent and strictly construed in favor of the sovereign and against waiver: “A waiver of sovereign immunity will only be found where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” /105/
A state is not required by the full-faith and credit clause to apply another state’s immunity law when that other state is sued in the courts of the forum state. The state may do so as a matter of comity. /106/
Another route to state court enforcement of federal claims against a state may be that indicated by the Seventh Circuit in Erickson v. Board of Governors of State Colleges and Universities /107/ . If a state opens its courts to suits against the state on state law claims comparable to federal claims against the state, the Seventh Circuit stated that the state may not bar claims based on federal law. Almost all states have laws against discrimination, and many allow such laws to be enforced in suits against the state or state agencies.
However, other courts require an express consent to suits in state courts to enforce federal law. In Alden v. Maine, decided before the Seventh Circuit decision in Erickson, the Supreme Court stated that, “[t]o the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit.” /108/
Advocates in several states are seeking state legislation waiving sovereign immunity in suits to enforce federal laws. Minnesota is the first state to enact such a law, applicable only to certain federal employment laws, in which it consents to suit in any court of competent jurisdiction. /109/ However, relying on College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, the Eighth Circuit found the language insufficiently unequivocal on waiver of immunity in federal courts. /110/ Advocates drafting state consent laws should include an express statement of consent to suit in federal courts.
I.H. Administrative Proceedings
The Supreme Court has held that states enjoyed sovereign immunity from federal adjudicative administrative hearings initiated and prosecuted by private parties./111/ The case may have only limited impact because all the justices agreed that:
private parties remain perfectly free to complain to the Federal Government about unlawful State activity and “the Federal Government [remains] free to take subsequent legal action.” The only step the FMC may not take, consistent with this Court’s sovereign immunity jurisprudence, is to adjudicate a dispute between a private party and a nonconsenting State./112/
One area that may be affected is federal whistle-blower statutes that provide for administrative hearings. /113/ However, the bar of sovereign immunity in that situation can be overcome if the federal agency intervenes as a party in the proceeding./114/ The First Circuit also left open the possibility that Ex parte Young could be applied to administrative proceedings if state officials were named as defendants in their official capacity and if the private plaintiff sought only injunctive relief. /115/
1. King v. Smith, 392 U.S. 309 (1968).
2.King, 392 U.S. at 309. See also Maine v. Thiboutot, 448 U.S. 1 (1980).
3. See, e.g., 42 U.S.C. § 2000d-7.
4. See, e.g., Fair Labor Standards Act, 29 U.S.C. § 216(b); Family Medical Leave Act, 29 U.S.C. § 2617(a)(2).
5. “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.”
6. Hans v. Louisiana, 134 U.S. 1 (1890).
7.Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)
8.Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040-41 (9th Cir. 2003); Belanger v. Madera Unified Sch. Dist., 963 F.2d 248 (9th Cir. 1992), cert. denied, 507 U.S. 919 (1993). Although the criteria for determining what entities are entitled to claim Eleventh Amendment immunity may vary among circuits, the most important factor, at least in close cases, is whether, considering the source of the entity’s funding, the payment of the judgment would come from the state. Febres v. Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir. 2006).
9. Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); see also Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658 (1978).
10.Ex parte Young, 209 U.S. 123 (1908).
11. Green v. Mansour, 474 U.S. 64 (1985).
12. Edelman v. Jordan, 415 U.S. 651 (1974).
13. Milliken v. Bradley, 433 U.S. 267 (1977). The Sixth Circuit has held that the Eleventh Amendment does not permit a prospective injunction that amounts to a direct monetary award. See Ernst v. Rising, 427 F.3d 351, 371 (6th Cir. 2005) (“[A] request that plaintiffs [district court judges] receive a higher pension benefit in the future not only compels greater state contributions in the future but also will compel other transfers of state funds to account for the lack of adequate contributions in the past.”).
14. The Fourth Circuit held in Lizzi v. Alexander, 255 F.3d 128, 137-38 (4th Cir. 2001), cert. denied sub nom. Lizzi v. Wash. Metro. Area Transit Auth., 534 U.S. 1081, reh’g denied, 535 U.S. 952 (2002), that individual capacity suits against state officials arising out of official acts may be limited to suits under 42 U.S.C. § 1983, and not to liability arising under other federal statutes, even though the statute specifically makes the state official liable. Without explanation, the court held that such suits are in fact against the state. Presumably, the court expected the state to indemnify the official for any liability. The Second Circuit held, however, that an individual capacity suit seeking an amount of damages far exceeding the defendant’s ability to pay does not transform the suit into one against the state even when the state voluntarily chooses to reimburse the official. Huang v. Johnson, 274 F.3d 682 (2d Cir. 2001). For a discussion of qualified immunity, see Section II infra.
15. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See Robert Capistrano, Using Section 1983 to Raise Constitutional Claims in Garden-Variety Cases, 38 Clearinghouse Rev. 734, 741 (Mar.-Apr. 2005).
16. Pennhurst State Sch. & Hosp., 465 U.S. at 89.
17.28 U.S.C. § 1367. Section 1367(a), however, does not extend supplemental jurisdiction to state claims against non-consenting state defendants. Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 542 (2002).
18. Theobald v. Bd. of County Comm’rs, 332 F.3d 414 (6th Cir. 2003).
20. Jinks v. Richland County, S.C., 538 U.S. 456 (2003).
21. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 768 n.19 (2002).
22. United States v. Miss. Dept. of Pub. Safety, 321 F.3d 495 (5th Cir. 2003).
23.Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
24. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). As discussed below, abrogation is also recognized under the spending clause powers of Congress. Abrogation of immunity under the spending clause is more nearly correctly denoted as waiver of immunity by a state accepting federal funds under a statute that provides for suit against an entity accepting the funds.
25. City of Boerne v. Flowers, 521 U.S. 507, 520 (1997) (requiring section 5 legislation to exhibit a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”).
26. Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (Clearinghouse No. 52,102).
27. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
28. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).
29. The Seventh Circuit held that Congress had authority under the Fourteenth Amendment to authorize Title VII claims alleging intentional discrimination in cases involving race and sex. Nanda v. Bd. of Trs. of the Univ. of Ill., 303 F.3d 817 (7th Cir. 2002), cert. denied, 539 U.S. 902 (2003); see also Downing v. Bd. of Trs. of the Univ. of Ala., 321 F.3d 1017 (11th Cir. 2003). The Second Circuit further held that Congress had Fourteenth Amendment authority to abrogate immunity in the Americans with Disabilities Act, but only to the extent that there is evidence in the case of discriminatory animus or ill will due to disability. Garcia v. State Univ. of N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 2001).
30. Tennessee v. Lane, 541 U.S. 509, 522-23 (2004) (Clearinghouse No. 55,480) (stating that the infringement of basic constitutional guarantees is “subject to more searching judicial review”). Lower courts are applying Lane in other contexts. For example, the Fourth and Eleventh Circuits have extended Lane to cases involving access to education. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 490 (4th Cir. 2005); Assoc. for Disabled Amer., Inc. v. Fla. Int’l. Univ., 405 F.3d 954, 959 (11th Cir. 2005).
31. United States v. Georgia, 126 S. Ct. 877 (2006).
32. U.S. Const. Art. I., § 8, cl. 4. See Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 451 (2004) (avoiding sovereign immunity question and holding that a bankruptcy proceeding initiated by a debtor against a state agency to determine the dischargeability of a student loan is an in rem action, not an action against the State for purposes of the Eleventh Amendment). See generally California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (holding the Eleventh Amendment does not bar federal jurisdiction over in rem admiralty actions when the State is not in possession of the property).
33. Cent. Va. Cmty. Coll. v. Katz, 126 S. Ct. 990 (2006).
34. Id. (holding that the States, in ratifying the Bankruptcy Clause, acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts).
35. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).
36. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985).
38.Ill. Bell Tel. Co. v. WorldCom Tech. Inc., 179 F.3d 566 (7th Cir. 1999), cert. granted sub nom. Mathias v. WorldCom Tech. Inc., 532 U.S. 903 (2001), cert. dismissed as improvidently granted, 535 U.S. 682 (2002), cert. denied, 535 U.S. 1107 (2002). See also Innes v. Kan. State Univ., 184 F.3d 1275 (10th Cir. 1999), cert. denied, 529 U.S. 1037 (2000) (participation of a state university in a federal student loan program that required the university to participate in bankruptcy proceedings constituted a waiver of immunity for those proceedings).
39. Bell Atl. Md. Inc. v. MCI Worldcom Inc., 240 F.3d 279, 293 (4th Cir. 2001), vacated on other grounds sub nom. Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002).
40. Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002).
41.Lane v. Peña, 518 U.S. 187, 198 (1996).
42. 70 Fed. Reg. 24314-22 (May 9, 2005) (final regulations) (amending the regulations governing nondiscrimination on the basis of race, color, national origin, handicap, sex, and age to conform to the Civil Rights Restoration Act of 1987).
44. Garcia v. State Univ. of N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 114 (2d Cir. 2001).
45. Id. Other circuits have rejected this approach. See, e.g., Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 495 (4th Cir. 2005); Pace v. Bogolusa City Sch. Bd., 403 F.3d 272, 282-85 (5th Cir. 2005); A.W. v. Jersey City Pub. Sch., 341 F.3d 234, 244 (3rd Cir. 2003).
46. This date appears unwarranted in light of the statement by the U.S. Supreme Court in Alden v. Maine, 527 U.S. 706, 712 (1999), that “this Court decided Seminole Tribe [ ], which made it clear that Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.”
47. Garrett, 531 U.S. at 374 n.9.
48. Judge Weiner of the Fifth Circuit wrote a powerful rebuttal to the decision in Garcia. See Johnson v. La. Dep’t of Educ., 330 F.3d 362 (5th Cir.) (separate opinion), reh’g en banc granted and order vacated, 343 F.3d 732 (5th Cir. 2003).
49.See, e.g., Constantine, 411 F.3d at 495; see also Bogalusa City Sch. Bd. 403 F.3d at 282 n. 62 (rejecting Garcia and collecting cases).
50. Coll. Sav., 527 U.S. at 686-87.
51. Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en banc), cert denied, 533 U.S. 949 (2001). See also North Carolina v. Califano, 445 F. Supp. 532 (D.N.C. 1977), aff’d without opinion, 435 U.S. 962 (1978) (loss of funding, amounting to $50 million in 1977 dollars, for some forty-five public health programs, not coercive).
53. See also West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281 (4th Cir. 2002); California v. United States, 104 F.3d 1086 (9th Cir.), cert. denied, 522 U.S. 806 (1997) (rejecting contention that Medicaid requirement to provide emergency care to immigrants is coercive since state health system would collapse without federal Medicaid funds).
54.Lapides v. Bd. of Regents, 535 U.S. 613 (2002).
55.Ku v. Tennessee, 322 F.3d 431 (6th Cir. 2003); Estes v. Wyo. Dep’t of Transp., 302 F.3d 1200 (10th Cir. 2003).
57.Lapides, 535 U.S. at 623, overruling Ford Motor Co. v. Dep’t of the Treasury of Ind., 323 U.S. 459 (1945).
58.Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754 (9th Cir. 1999), opinion amended and reh’g denied, 201 F.3d 1186 (9th Cir. 2000). Accord Ku, 322 F.3d at 434-35. Compare Meyers v. Texas, 410 F.3d 236 (5th Cir. 2005) (discussing Lapides); SDSS, Inc. v. South Dakota, 225 F.3d 970 (8th Cir. 2000) (rejecting State’s attempt to invoke sovereign immunity for the first time following remand from the court of appeals); In re Platter, 140 F.3d 676, 680 (7th Cir. 1998) (State waived sovereign immunity by voluntarily filing a claim in federal court); Paul N. Howard Co. v. P.R. Aqueduct Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984) (State waived sovereign immunity by filing a counter-claim and third-party complaint in federal court).
59. Cisneros v. Wilson, 226 F.3d 1113 (10th Cir. 2000), overruled on other grounds by Bd of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
60.Calderon v. Ashmus, 523 U.S. 740, 745 n.2. (1998).
61. Neinast v. Texas, 217 F.3d 275, 279 (5th Cir. 2000), rehg denied, 228 F.3d 411 (5th Cir. 2000), cert. denied, 531 U.S. 1190 (2001).
62. See Lapides, 251 F.3d 1372, 1375 (11th Cir. 2001), rev’d, 535 U.S. 613 (2002). See also Miller v. Texas Tech. Univ. Health Scis. Ctr., 421 F.3d 342, 348 (5th Cir. 2005) (holding that state defendants “cannot accept the benefits of the [Rehabilitation Act] funds and reject the inextricably intertwined condition of waiver by claiming post hoc that the delegation of authority to accept the funds did not carry with it the authority to waive immunity.”)
63. Ex parte Young, 209 U.S. at 123.
64. The Age Discrimination in Employment Act may be enforced against states prospectively by injunction even though damages are not recoverable. Ku, 322 F.3d at 431.
65. Suever v. Connell, 439 F.3d 1142, 1148 (9th Cir. 2006); Johns v. Stewart, 57 F.3d 1544 (10th Cir. 1995).
66. Fla. Ass’n. of Rehabilitative Facilities v. Florida Dept. of Health & Rehabilitative Servs., 225 F.3d 1208, 1220 (11th Cir. 2000); Lawson v. Shelby County, Tenn., 211 F.3d 331, 335 (6th Cir. 2000).
67. See Lawson 211 F.3d at 335 n.13.
68. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
69. Id. at 71 n.14 (citing Young, 209 U.S. at 154-58).
71. Id. at 645 (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)).
73. Frew v. Hawkins, 540 U.S. 431, 441-42 (2004) (Clearinghouse No. 55,435). The Court did not reach the question of whether a state waived its immunity by entering into a consent decree approved by the trial court.
75. E.g., Americans with Disabilities Act, Title II, 42 U.S.C. §§ 12131(l), 12132.
76. E.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
77.E.g., Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied sub nom. United States v. Snyder, 531 U.S. 1190 (2001).
80. Garrett, 531 U.S. at 374 n.9 (emphasis added). Accord Bruggeman v. Blagojevich, 423 F.3d 906, 912-13 (7th Cir. 2003) (stating Walker did not survive Garrett). See McCarthy v. Hawkins, 381 F.3d 407, 414 (5th Cir. 2004) (collecting cases and allowing Young action against state officials to enforce Title I).
81. Garrett, 531 U.S. at 374 n.9.
82. See Alexander v. Sandoval, 532 U.S. 275, 290-91 (2001) (Clearinghouse No. 51,706).
83. Rosado v. Wyman, 397 U.S. 397 (1970); see Robert Capistrano, Enforcing Federal Rights: The Law of Section 1983 (Part 1), 33 CLEARINGHOUSE REVIEW 217 (Sept.-Oct. 1999).
85. Seminole Tribe, 517 U.S. at 73-76.
86. The alternate remedy provision at issue in Verizon, 47 U.S.C. § 252(e)(6), generally allowed a party aggrieved by a decision of the state commission to bring suit in federal court. The Court said this provision was not like the “detailed and exclusive remedial scheme” in Seminole Tribe, emphasizing that the remedial scheme under the statute did not significantly limit the liability of the state more than remedies available in the suit brought in federal court under 28 U.S.C. § 1331. 535 U.S. at 647-48.
87. Okpalobi v. Foster, 244 F.3d 405, 416 (5th Cir. 2001) (quoting Young, 209 U.S. at 155-56).
88. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997).
89. See Elephant Butte Irrigation Dist. v. Dep’t of the Interior, 160 F.3d 602 (10th Cir. 1998).
90.Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002); Westside Mothers v.Haveman, 289 F.3d 852 (6th Cir. 2002) (Clearinghouse No. 52,678). J.B. v. Valdez, 186 F.3d 1280, 1287 (10th Cir. 1999).
91. Westside Mothers v. Haveman, 133 F. Supp. 2d 549 (E.D. Mich. 2001), rev’d, 289 F.3d 852 (6th Cir. 2002).
92.Westside Mothers, 289 F.3d at 861-63.
94.Westside Mothers, 289 F.3d at 858 (referring to Pennhurst State Sch. v. Halderman, 451 U.S. 1 (1981); see also Antrican, 290 F.3d at 187-88. Justice Thomas has expressed support for the approach of the district court in Westside Mothers. See Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 675 (2003) (Thomas, J., concurring in the judgment). Justice Scalia appears to have similar views but concedes that suits under the spending clause are not suits in contract and that contract law principles do not apply to all issues that they raise. Barnes v. Gorman, 536 U.S. 181, 188 (2002).
95.Mitchell v. Forsyth, 472 U.S. 511 (1985).
96.Churnan v. Wright, 960 F.2d 104 (9th Cir. 1992); see also Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 93-94 (1st Cir. 2003) (recognizing exception to this rule if appeal is frivolous).
97. See, e.g., Root v. Liberty Emergency Physicians Inc., 68 F. Supp. 2d 1086 (W.D. Mo. 1999) (staying all proceedings against all parties pending the immunity appeal of one party).
98.See, e.g., McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 416-17 (5th Cir. 2004); Rosie D. v. Swift, 310 F.3d 230, 233-34 (1st Cir. 2002); Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002).
99.Rivera-Torres, 341 F.3d at 94.
100.Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996).
101. Alden v. Maine, 527 U.S. 706, 755-56 (1999) (Clearinghouse No. 52,332).
102.Anthony v. State, 632 N.W.2d 897 (Iowa 2001). Accord Williamson v. Dep’t of Human Res., 572 S.E.2d 678 (Ga. Ct. App. 2002).
103. The Iowa court took a more liberal approach to statutory consent to suit than the U.S. Supreme Court to waiver of Eleventh Amendment immunity. The Supreme Court held that a state statute authorizing suit against the state in a court of competent jurisdiction was insufficient to waive Eleventh Amendment immunity to suit in federal court. A clear statement of consent to suit in federal court is required. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Expense Bd., 527 U.S. 666, 675-76 (1999).
104. King v. State, 614 N.W.2d 341 (Neb. 2000).
106.Hyatt v. Franchise Tax Bd. of Cal., 538 U.S. 488 (2003). Because the parties did not raise any issue of sovereign immunity in the U.S. Supreme Court, the Court did not consider the issue.
107.Erickson v. Bd. of Governors of State Colls. & Univs., 207 F.3d 945, 952 (7th Cir. 2000).
109.Minn. Stat. § 1.05 (2005). Compare N.C. Gen. Stat. § 143-300.35 (2005) (waiving sovereign immunity to plaintiffs’ suits in State and federal courts under the Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act, and Family Medical Leave Act.
110.Coll. Sav. Bank, 527 U.S. at 676. See Faibash v. Univ. of Minn., 304 F.3d 797 (8th Cir. 2002). See also Stanley v. Trs. of Cal. St. Univ., 433 F.3d 1119 (9th Cir. 2006) (discussing Unruh Civil Rights Act and holding that a state does not consent to suit in federal court by consenting to suit in its own state courts).
111.Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002).
113.See R.I. Dep’t of Env’t Mgmt. v. United States, 304 F.3d 31, 55 (1st Cir. 2002).
114.Id. at 53-54. See also Conn. Dep’t of Env’t Prot. v. OSHA, 356 F.3d 226, 234 (2d Cir. 2004).
II. Suits Against Public Officials in Their Individual Capacity >