Brian East, Esq.
7800 Shoal Creek Blvd # 171-E
Austin, TX 78757
Tel: (512) 454-4816
Fax: (512) 323-0902
1. Who are you suing?
- Sometimes it’s hard to tell if an entity is an “arm of the state,” or a local government entity, and it’s not always obvious from the name. Compare Chisolm v. McManimon, 275 F.3d 315, 322-323 (3d Cir. 2001) (prior to unification, county courts were not an arm of state), with Reiff v. Philadelphia County Court of Common Pleas, 827 F. Supp. 319, 324 (E.D. Pa. 1993) (court of common pleas is an arm of the state); and Clark v. Tarrant County, Texas, 798 F.2d 736, 744-745 (5th Cir. 1986) (county adult probation department was an arm of the state), with Flores v. Cameron County, Texas, 92 F.3d 258, 264-269 (5th Cir. 1996) (county juvenile probation board not an arm of the state).
- This distinction is important because an “arm of the state” can claim 11th Amendment immunity, while a local government entity (e.g., a county, municipal corporation, or other political subdivision of the state) generally cannot. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001).
- Factors for assessing whether an entity is an arm of the state are described in, among other cases, Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (Ohio school board was not arm of the state); Chisholm, supra, 275 F.3d at 323; Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001) (regional transportation authority not an arm of the state); and Brotherton v. Cleveland, 173 F.3d 552, 561 (6th Cir. 1999) (eye bank, while a “state actor” subject to § 1983, was not an arm of the state). See also “Circumventing the Eleventh Amendment in the Third Circuit,” 43 Vill. L. Rev. 923, 937 n.83 (1998); Wright & Miller, Federal Practice & Procedure § 3524 at nn.30-45.4.
- Some particular examples:
i. School districts – in most states, they are local governmental entities with no 11th Amendment immunity. Duke v. Grady Mun. Schools, 127 F.3d 972 (10th Cir. 1997) (New Mexico schools); Ambus v. Granite Board of Education, 995 F.2d 992, 995 (10th Cir. 1993) (Utah); Lopez v. Houston Independent School District, 817 F.2d 351, 353 (5th Cir. 1987) (Texas); Lenzo v. School City of East Chicago, 140 F. Supp.2d 947, 959-962 (N.D. Ind. 2001) (and cases cited); Herrera v. Russo, 106 F. Supp.2d 1057 (D.Nev. 2000). See also Wright & Miller, Federal Practice & Procedure § 3524 at nn. 22-29. But cf. Belanger v. Madera Unified School District, 963 F.2d 248 (9th Cir. 1992), cert. denied, 507 U.S. 919 (1993) (holding California school districts are arms of the state); Biggs v. Board of Educ. of Cecil County, 2002 WL 370195, at*7 (D.Md. March 6, 2002).
ii. Local MHMR authorities – Farias v. Bexar County Board of Trustees for MHMR Services, 925 F.2d 866, 874 (5th Cir.), cert. denied, 502 U.S. 866 (1991) (not an arm of the state).
iii. Transit systems – Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001) (WMATA is an arm of the state); Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343 (10th Cir. 1997) (not an arm of the state); Access Living Metro v. Chicago Transit Authority, 2001 WL 818789 (N.D. Ill. Mar 12, 2001) (not an arm of the state).
iv. Other entities – see Wright & Miller, Federal Practice & Procedure § 1110 at n.8 and § 3524 at nn. 33-38.
2. Suing the state (or state agency, or an “arm of the state”)
- if you are suing the state, and you are seeking damages:
i. First consider whether or not the state has waived any claim of immunity.
(1) To waive its 11th Amendment immunity, a state must express its consent to suit unequivocally. Hibbs v. Department of Human Resources, 273 F.3d 844, 851-852 (9th Cir. 2001); Lopez v. Police Dep’t, 247 F.3d 26, 28-29 (1st Cir. 2001).
(a) 11th Amendment immunity cannot be constructively waived. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 678 (1999) (court will find “waiver only 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”).
(b) Some courts recognize a narrow “litigation exception” to this doctrine based on the state’s conduct in a particular case. See Armstrong v. Davis, 275 F.3d 849, 877-878 (9th Cir. 2001) (state waived 11th Amendment immunity by failing to assert it); Hibbs, supra, 273 F.3d at 852 n.4 (finding the exception inapplicable under the facts presented); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 821 (9th Cir. 2001); Varela-Fernandez v. Burgos, 81 F. Supp.2d 297, 300-301 (D.P.R. 1999). See also Marisol A. v. Giuliani, 157 F. Supp.2d 303, 314 (S.D. N.Y. 2001) (state may waive 11th Amendment immunity by entering into a settlement agreement in which it unequivocally agrees to subject itself to federal court jurisdiction). But cf. Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 467-468 (1945) (suggesting that state Attorneys General may not always have the authority to waive 11th Amendment immunity); Lapides v. Bd. of Regents, 251 F.3d 1372 (11th Cir.) (state’s removal of a claim to federal court does not waive 11th Amendment immunity), cert granted, 122 S. Ct. 456 (2001).
(2) Immunity may be waived by state statute. E.g., Chapter 159, 2001 Minnesota Session Laws.
(3) Immunity may also be waived by accepting federal funds conditioned on such a waiver. See §§ 2(a)(iii)(2)(b) and 7(c)(iii)(2) below.
(4) Note that while some courts have held that 11th Amendment immunity may be waived if not timely asserted, Armstrong v. Davis, 275 F.3d 849, 877-878 (9th Cir. 2001), others have held that it may be raised for the first time on appeal, Shaboon v. Duncan, 252 F.3d 722, 737 n.9 (5th Cir. 2001); Lapides, supra, 251 F.3d at 1378 (“may be asserted at any point”), may be raised by the court sua sponte, Lapides, supra, 251 F.3d at 1378, and may be the subject of interlocutory appeals, Shaboon, supra, 252 F.3d at 729.
ii. Some courts have held that the 11th Amendment does not bar a damage claim against a state, even in absence of a waiver of immunity, when:
(1) The federal government will ultimately reimburse all or part of a money judgment against the state. Compare Conrad v. Perales, 92 F. Supp.2d 175, 180 (W.D. N.Y. 2000).
(2) The entity invoking the immunity is sued only in its representative capacity. Compare State of California v. Campbell, 138 F.3d 784, 787 (9th Cir. 1998) (suit did not seek to recover assets of the state, but only named the entity in question in its capacity as a receiver of the assets of others).
iii. 11th Amendment immunity from claims under particular statutes
(1) ADA claims
(a) Title I – damages unavailable, Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), unless the state has waived its 11th Amendment immunity.
(b) Title II
(i) The Supreme Court refused to decide the issue. Garrett, supra, 531 U.S. at 360 n.1.
(ii) The lower courts are divided
1) After Garrett, most courts considering the issue have held that Title II cannot abrogate 11th Amendment immunity. See, e.g., Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Association for Disabled Americans, Inc. v. Florida International University, 178 F. Supp.2d 1291, 1293-1294 (S.D. Fla. 2001) (collecting similar cases); Badillo-Santiago v. Andreu-Garcia, 167 F. Supp.2d 194 (D.P.R. 2001); Lieberman v. Delaware, 2001 WL 1000936 (D.Del. Aug 30, 2001); Doe v. Div. of Youth and Family Serv., 148 F. Supp.2d 462, 487-88 (D.N.J. 2001). See also Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir.1999) (en banc), decided pre-Garrett.
2) At least one circuit continues to hold that states are not immune. Hason v. Medical Bd. of California, 279 F.3d 1167, 1170-1171 (9th Cir. 2002). See also Project Life, Inc. v. Glendening, 139 F. Supp.2d 703, 707 n.5 (D.Md. 2001).
3) The Second Circuit has held that, while Title II as a whole failed to validly abrogate 11th Amendment immunity, suits for money damages under Title II can be maintained against a state if the plaintiff can establish that the Title II violation was motivated by discriminatory animus or ill will. Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001). Compare Bowers v. National Collegiate Athletic @#!*% ‘n, 171 F. Supp.2d 389, 407-408 (D.N.J. 2001), appeal pending (reading Title II “to call upon Congress’ § 5 power only insofar as it makes available damages for intentional discrimination. In all other respects, Title II is simply regulation under the Commerce Clause”; note, too, that the court’s view of intent does not appear to require ill will); Doe v. Division of Youth and Family Services, 148 F. Supp.2d 462, 487 (D.N.J. 2001) (courts are “constrained to formulate constitutional rules only to the extent necessary to resolve the issues,” so the holding that immunity was not abrogated for the claim presented “in no way calls into question” other provisions of Title II).
4) The Sixth Circuit has held that an action is barred by the 11th Amendment insofar as the action relies on congressional enforcement of the Equal Protection Clause, but it is not barred insofar as it relies on congressional enforcement of the Due Process Clause. Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 811 (6th Cir. 2002) (en banc). Compare Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509 (E.D. Pa. 2001) (acknowledging substantive due process right to community-based services in certain cases, but finding Title II cannot abrogate 11th Amendment immunity).
(c) ADA retaliation – the courts are divided on whether the states have 11th Amendment immunity from claims under the anti-retaliation provisions of Title V. Compare Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001) (states have immunity, at least in situations in which the retaliation claims are predicated on alleged violations of Title I), with Roberts v. Pennsylvania Dept. of Public Welfare, 2002 WL 253945 (E.D.Pa. Feb. 20, 2002) (no immunity).
(2) § 504
(a) Most lower courts since Garrett have held that Congress cannot abrogate the states’ immunity from damages under the Rehabilitation Act. See, e.g., Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 113 (2d Cir.2001); Garrett v. University of Alabama at Birmingham Bd. of Trustees, 276 F.3d 1227, 1228-1229 (11th Cir. 2001) (on remand); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000).
(b) But most lower courts have also found that under Congress’ Spending Clause authority, the states validly waive their 11th Amendment immunity from § 504 claims by accepting federal funds conditioned on such a waiver.
(i) Finding such a waiver of immunity: Carten v. Kent State University, 282 F.3d 391, 398 (6th Cir. 2002); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 819-821 (9th Cir. 2001) (and cases cited); Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000, en banc), cert. denied sub nom Arkansas Dept. of Educ. v. Jim C., 121 S. Ct. 2591 (2001); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000); August v. Mitchell, 2002 WL 188406 (E.D. La. Feb 01, 2002); Johnson v. State of Louisiana, 2002 WL 83645, at *5 (E.D. La. Jan 18, 2002); Bowers v. National Collegiate Athletic @#!*% ‘n, 171 F. Supp.2d 389, 408 (D.N.J. 2001), appeal pending (rejecting Garcia argument); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 523 (E.D. Pa. 2001); Lieberman v. Delaware, 2001 WL 1000936, at *5-6 (D.Del. Aug. 30, 2001). See also Kvorjak v. Maine, 259 F.3d 48, 50 n.1 (1st Cir. 2001) (stating that employment claim could proceed under § 504 after Garrett, though without analysis); Maull v. Division of State Police, 141 F. Supp.2d 463, 474 (D.Del. 2001) (relying in part on Jim C., supra). Compare Sandoval v. Hagan, 197 F.3d 484, 493 (11th Cir.1999) (describing Rehabilitation Act’s language as a “clear” waiver of state sovereign immunity in exchange for federal funds), overruled on other grounds, Alexander v. Sandoval, 531 U.S. 1049 (2001). Compare Garrett, supra, 276 F.3d at 1228-1229 (remanded for consideration of the issue); Reickenbacker, supra, 274 F.3d at 984 (issue not preserved).
(ii) Finding no waiver: Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 113-115 (2d Cir.2001) (no knowing waiver because at the time the state accepted funds [pre-Seminole decision in 1995], Title II was reasonably understood to abrogate state’s sovereign immunity under Commerce Clause authority, so a state accepting federal funds conditioned on a waiver of immunity from § 504 claims, which proscribed the same conduct, could not have understood that it was actually giving up anything).
(3) § 1983 – states have 11th Amendment immunity. Quern v. Jordan, 440 U.S. 332, 338 et seq. (1979). (For more on § 1983, see § 5 below.)
(4) FMLA – undecided. Hibbs v. Department of Human Resources, 273 F.3d 844, 850-851 (9th Cir. 2001) (collecting authorities, and creating a split in the circuits by holding that one part of the FMLA was a valid exercise of Congress’ 14th Amendment power).
(5) Under any state law
(a) In federal court – you cannot sue the state under state law in federal court unless the state waives immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); Reyes v. Sazan, 168 F.3d 158, 162 (5th Cir. 1999).
(b) In state court – there is no 11th Amendment bar, but the claim is governed by state “sovereign immunity” law.
iv. Note, too, that many courts have held that damages under Title II and § 504 are only recoverable for intentional discrimination. See, e.g., Bowers v. National Collegiate Athletic @#!*% ‘n, 171 F. Supp.2d 389, 405-406 (D.N.J. 2001), appeal pending.
b. Equitable relief against the states
i. The Eleventh Amendment on its face applies equally to suits for damages and equitable relief. Carten v. Kent State University, 282 F.3d 391, 397 (6th Cir. 2002) (11th Amendment bars claim for injunctive relief against KSU); Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995) (suit against the state is barred by the 11th Amendment regardless of whether the relief sought is legal or equitable).
ii. If you are suing the state, a state agency, or an “arm of the state,” and you are seeking prospective injunctive relief, you cannot do it directly, and must instead name a state official in his or her official capacity in order to proceed under Ex parte Young. See § 3(a)(iii) below.
c. Suing states in state court for violation of federal laws
i. The Supreme Court has held that reference to the states’ immunity from suit as “Eleventh Amendment immunity” is “convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Alden v. Maine, 527 U.S. 706, 713 (1999). Although by its terms the 11th Amendment does not apply to actions in state courts, id. at 735-736, the Supreme Court has held that the states’ “constitutional immunity from suit is not limited to the text of the Amendment,” id. at 736, and the states “retain immunity from private suit in their own courts . . . [that is] beyond the congressional power to abrogate by Article I legislation.” Id. at 754.
ii. The limits on this sovereign immunity include:
(1) The “good faith” of the states, that they will not refuse to honor “obligations imposed by the Constitution and by federal statutes that comport with the constitutional design.” Id. at 755.
(2) Claims for which the states have consented to suit. Id. at 755.
(3) Claims against states by other states or the federal government. Id. at 755.
(4) Suits in which immunity is abrogated pursuant to Congress’ 14th Amendment authority. Id. at 756.
(5) Suits against local government entities. Id. at 756. See § 4 below.
(6) Ex parte Young claims. Id. at 756-757. See § 3(a)(iii)(1) below.
(7) Individual capacity claims against state officials. Id. at 757. See § 3(b)(i) below.
(8)Possibly, situations in which states manipulate their immunity in a systematic fashion to discriminate against federal causes of action. Compare Alden, supra, 527 U.S. at 758. See also § 8(b) below.
3. Suing a state official
a. If you are suing a state official in his or her official capacity:
i. For damages – unavailable. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
ii. For equitable relief generally – unavailable. See § 2(b)(i) above.
iii. For prospective injunctive relief
1. Federal cause of action
(a) 11th Amendment is not a bar to an action under Ex parte Young. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (explicitly recognizing Ex parte Young actions for prospective injunctive relief against state officials under Title I of the ADA). For cases allowing Ex parte Young actions to enforce the ADA, see, e.g., Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001); Daigle v. Louisiana Dept. of Social Services, 2002 WL 126647 (E.D. La. Jan. 31, 2002); Parker v. Michigan Department of Corrections, 2001 WL 1736637, at*5 (W.D.Mich. Nov. 9, 2001). For more examples, see the NAPAS docket at http://www.protectionandadvocacy.com/sept01.htm, listing community integration cases. See also the cases cited in § 7(d) below.
(b) Some courts have identified four requirements for a valid Ex parte Young claim. See, e.g., Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975-976 (10th Cir. 2001). See also Wright & Miller, Federal Practice & Procedure § 3524 at nn. 70.9-70.10 (2001 Supp.).
(i) The plaintiffs must sue state officials, rather than the state itself. See, e.g., Reickenbacker v. Foster, 274 F.3d 974, 976 n.9 (5th Cir. 2001) (amended complaint named no state official, and was not entitled to proceed under Ex parte Young); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975-976 (10th Cir. 2001); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 821 n.6 (9th Cir. 2001); Association for Disabled Americans, Inc. v. Florida International University, 178 F. Supp.2d 1291, 1295 (S.D. Fla. 2001); U.S. v. Mississippi Dept. of Public Safety, 159 F. Supp.2d 374, 378 (S.D.Miss. 2001); Diaz Reyes v. Police Department, 153 F. Supp.2d 74 (D.P.R. 2001); American Soc. of Consultant Pharmacists v. Patla, 138 F. Supp.2d 1062, 1070-1071 (N.D. Ill. 2001). Compare Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).
(ii) The plaintiffs must allege a non-frivolous violation of federal law.
(iii) The plaintiffs must seek prospective equitable relief, rather than retroactive monetary relief from the state treasury. For example, claims for reinstatement are prospective in nature. Carten, supra, 282 F.3d at 396 (rejecting defense argument that the plaintiff was seeking a retrospective reversal of a completed state decision to expel him).
(iv) The suit must not implicate the state’s “special sovereignty interests.” For more on this theory, see § 7(d)(iii) below.
(c) The Ex parte Young distinction does not allow all equitable relief, but is limited to prospective injunctive relief. Compare Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995) (suit against the state is barred by the 11th Amendment regardless of whether the relief sought is legal or equitable).
(i) It cannot be used to obtain declaratory relief for a past violation of federal law. Green v. Mansour, 474 U.S. 64 (1985); Doe v. Division of Youth and Family Services, 148 F. Supp.2d 462, 484 (D.N.J. 2001); Robertson v. Huffman, 144 F. Supp.2d 447, 452-453 (W.D. N.C. 2001). Compare Wright & Miller, Federal Practice & Procedure § 3524 at n. 61.1 (2001 Supp.).
(ii) There must also be an ongoing violation of federal law. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).
(d) A prospective injunction is permitted even though a substantial state expenditures may be required to correct the violation. Milliken v. Bradley, 433 U.S. 267 (1977); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 977-978 (10th Cir. 2001); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001); American Soc. of Consultant Pharmacists v. Patla, 138 F. Supp.2d 1062, 1069-1070 (N.D. Ill. 2001).
(e) Similarly, there is no 11th Amendment bar to a claim for attorneys fees in an Ex parte Young suit. Missouri v. Jenkins, 491 U.S. 274, 279 (1989) (“an award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment”).
iv. For state law claims In federal court
(a) State can claim 11th Amendment immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 109 (1984).
(b) There is no exception to this immunity just because suit seeks only prospective injunctive relief (i.e., no Ex parte Young exception). Pennhurst, supra, 465 U.S. at 109; Papasan v. Allain, 478 U.S. 265, 277 (1986); Lewis v. New Mexico Dept. of Health, 94 F. Supp.2d 1217, 1229 (D.Colo. 2000), aff’d on other grounds, 261 F.3d 970 (10th Cir. 2001).
(c) There may be some other, narrower exceptions, however:
(i) Federal courts may have jurisdiction to prospectively require state officials to obey state law if federal regulations make compliance with the state law a federal duty. See discussion and authorities in Doe, 1-13 v. Bush, 261 F.3d 1037, 1055 et seq. (11th Cir. 2001). See also Cox v. City of Dallas, 256 F.3d 281, 308 (5th Cir. 2001).
(ii) A consent decree normally does not confer jurisdiction on a federal court to enforce state law claims, but it can validly include protections found in a state statute as a means of correcting violations of federal rights, and a subsequent motion to enforce such a decree is not a “federal suit against state officials on the basis of state law.” Komyatti v. Bayh, 96 F.3d 955, 960-961 (7th Cir. 1996).
(iii) 11th Amendment immunity does not prevent an action in federal court against a state official for ultra vires actions beyond the scope of statutory authority, or pursuant to authority deemed to be unconstitutional. Pennhurst, supra, 465 U.S. at 101-102, n. 11; Scham v. District Courts, 967 F. Supp 230, 232-233 (S.D.Tex. 1997).
(1) In this context, ultra vires actions are those “without any authority whatever;” claim rests on the officer’s lack of delegated power. Pennhurst, supra, 465 U.S. at 101-102, n. 11.
(2) The test has been stated as whether there was any “colorable basis for the exercise of authority by state officials.” A claim of error in the exercise of that power is insufficient. Id.
2. In state court – depends on state law
b. If you are suing a state official in his or her individual capacity (i.e., getting money out of official’s own pocket):
i. 11th Amendment does not bar suit against state officials in their individual capacities, even if arising from their official acts, Hafer v. Melo, 502 U.S. 21, 30-31 (1991), unless the claim will “run to the state treasury” under state law. Reyes v. Sazan, 168 F.3d 158, 162-163 (5th Cir. 1999).
(1) State law that bars individual liability and instead imputes it to the state means that the claim “runs to the state,” id., but
(2) Several courts have held that indemnification statutes do not mean the judgment “runs to the state,” and therefore pose no 11th Amendment bar against individual claims. Id.; Cornforth v. University of Oklahoma Bd. of Regents, 263 F.3d 1129, 1133 (10th Cir. 2001); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 945 (7th Cir. 1986). See also Jackson v. Georgia Dept. of Transp., 16 F.3d 1573 (11th Cir. 1994) (existence of state’s liability insurance trust fund, voluntarily established to protect its employees against personal liability for damages, does not make state real party in interest for purposes of 11th Amendment immunity). Compare Wright & Miller, Federal Practice & Procedure § 3524 at n. 48.2 (2001 Supp.).
(3) Voluntary payments by state to enable non-state agency to meet shortfall caused by adverse judgment do not trigger 11th Amendment immunity. Christy v. Pennsylvania Turnpike Com’n, 54 F.3d 1140, 1147 (3d Cir. 1995).
ii. It does not matter whether the individual capacity suit is to enforce federal or state law. Sutta v. Acalanes Union High School Dist., 2001 WL 1720616, *3 (N.D.Cal. Oct. 3, 2001) (officers sued in their individual capacity for violations of state law can be liable for monetary damages).
iii. But the cause of action must allow for individual liability.
(1) Statutes allowing for individual liability: § 1983, Hafer v. Melo, 502 U.S. 21 (1991).
(2) Statutes generally held not to allow such liability: ADA Title I – Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999); ADA Title II – Navedo v. Maloney, 172 F. Supp.2d 276, 288-289 (D.Mass. 2001) (collecting authorities); Key v. Grayson, 163 F. Supp.2d 697 (E.D. Mich. 2001) (similar). Rehabilitation Act employment claims – Hiler v. Brown, 177 F.3d 542, 546-547 (6th Cir. 1999); Castro Ortiz v. Fajardo, 133 F. Supp.2d 143, 150-151 (D.P.R. 2001) (collecting cases).
(3) Statutes with less clear authority: FMLA – compare Hibbs v. Department of Human Resources, 273 F.3d 844, 871-872 (9th Cir. 2001) (some supervisors can be sued as employers), with Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999) (no individual liability of public officials). § 504 non-employment cases – compare Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994) (holding that qualified immunity is a defense, suggesting the availability of individual capacity claims; compare § 3(b)(iv) below), with Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509, 531 (E.D. Pa. 2001) (not reaching the issue but citing cases finding no individual liability).
iv. Individuals are also entitled to claim qualified immunity
(1) What it is: “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Crawford-El v. Britton, 523 U.S. 574, 588 (1998).
(2) Who can claim it:
(a) This defense is not applicable to claims against a governmental entity itself. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 166 (1993).
(b) This defense is not applicable to claims against individuals in their official capacity. Kentucky v. Graham, 473 U.S. 159, 166-167 (1985).
(c) Not applicable to suits (or portions of suits) for injunctive relief. Valley v. Rapides Parish School Board, 118 F.3d 1047, 1051 n.1 (5th Cir. 1997); Lugo v. Alvarado, 819 F.2d 5, 7 (1st Cir. 1987); Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993) (because such claims are necessarily official capacity suits); Rouse v. Plantier, 997 F. Supp. 575 (D.N.J. 1998).
(d) This defense is only available to claims against individuals in their individual capacity. Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir. 1980).
4. Suing a local government entity or official
a. Generally, there is no 11th Amendment immunity. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001).
b. Note that some courts have granted 11th Amendment immunity to local governments when their actions were compelled by state law. See Wright & Miller, Federal Practice & Procedure § 3524 at nn. 251-253 (2001 Supp.).
c. Note that other kinds of immunity may apply. For a case discussing the effect of judicial immunity on ADA and § 504 claims, for example, see Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001).
d. Many courts have held that damages under Title II and §504 are only recoverable for intentional discrimination. See, e.g., Bowers v. National Collegiate Athletic @#!*% ‘n, 171 F. Supp.2d 389, 405-406 (D.N.J. 2001), appeal pending. The meaning of intent in this context is fluid. See Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 112, 115 (2d Cir.2001).
e. Note, too, that there are certain attacks on Congressional authority that could impact claims against local government entities. See § 7(c)(ii) and (iii) below.
5. § 1983 claims generally – 42 U.S.C. § 1983 is not a cause of action, but a procedural method to enforce:
a. Federal constitution
b. Certain federal statutory rights
i. § 1983 actions may sometimes be based on a violation of a federal statute, Maine v. Thiboutot, 448 U.S. 1 (1980), if the statute creates a federal right. Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 1359 (1997) (child support obligations under Title IV-D of Social Security Act statute did not create enforceable right under § 1983).
ii. The Supreme Court discussed the standards for determining which federal statutes are enforceable under § 1983 in Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987), Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Suter v. Artist M., 503 U.S. 347, 355-356 (1992), and Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353 (1997). See Messier v. Southbury Training School, 916 F. Supp. 133, 142-146 (D.Conn. 1999).
iii. The resulting Wright/Wilder/Blessing test, set out in Blessing, supra, 520 U.S. at 340-341, states:
(1) There is a rebuttable presumption that a statute is enforceable under § 1983 if the Plaintiff can show that:
(a) Congress intended the provision to benefit the plaintiff;
(b) The right is not too vague and amorphous to enforce;
(c) The provision unambiguously imposes a binding obligation on the states.
(2) The statute is enforceable unless the Defendant can prove that Congress has foreclosed a § 1983 remedy.
iv. Congress may clarify that a particular statute is not actionable under § 1983, either by express words, or by providing a comprehensive alternative enforcement scheme. Livadas v. Bradshaw, 512 U.S. 107 (1994).
v. Particular statutes:
(1) IDEA – The case law is split. Padilla v. School Dist. No. 1 in City and County of Denver, Colo., 233 F.3d 1268, 1272-1274 (10th Cir. 2000) (rejecting the use of §1983 to enforce IDEA, but collecting authorities on both sides); Goleta Union Elementary School Dist. v. Ordway, 166 F. Supp.2d 1287, 1293-1295 (C.D.Cal. 2001) (also collecting authorities and reaching a contrary result). See also “A Diller, a Dollar: Section 1983 Damage Claims in Special Education Lawsuits,” 36 Ga. L. Rev. 465, 496-497 (2002).
(2) Medicaid – for an exhaustive summary of § 1983 cases involving the Medicaid Act, see Jane Perkins, “42 U.S.C. § 983 and Enforcement of the Medicaid Act,” (Updated March 25, 2002). For this resource online, see http://www.healthlaw.org/pubs/1983docket.html.
(3) Rehabilitation Act:
(a) Title I (covering vocational rehabilitation programs): see Mallett v. Wisconsin Division of Vocational Rehabilitation, 130 F.3d 1245, 1251-1257 (7th Cir. 1997) (holding enforceable).
(b) § 501: generally not enforceable under § 1983 because of its detailed remedial scheme. See, e.g., Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1530-1531 (11th Cir. 1997).
(c) § 504: The cases are divided. Compare W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (§ 504 enforceable under § 1983 in the special education context); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 532-534 (E.D.Pa. 2001) (§ 504 community integration claim enforceable under § 1983), with cases finding § 504 not enforceable, like Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094, 1145 (S.D.N.Y. 1997), aff’d on other grounds, 156 F.3d 321 (2d Cir. 1998); Silk v. City of Chicago, 1996 WL 312074, at *18-19 (N.D.Ill. 1996) (collecting cases). See also Hartley, “Enforcing Federal Civil Rights Against Public Entities After Garrett,” 28 J. Coll. & Univ. L. 41, 77 n.196 (2001) (collecting cases). The question may be less important if the same relief is available directly under § 504. (See § 2(a)(iii)(2) above.) Some differences may be with regard to the availability of individual capacity claims and punitive damages.
(a) Title I employment claims: generally not enforceable because of its detailed remedial scheme. E.g., Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1530-1531 (11th Cir. 1997); Krocka v. Bransfield, 969 F. Supp. 1073, 1090 (E.D. Ill. 1997).
(b) Title II: the cases are divided. Holding not enforceable: Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094, 1145 (S.D.N.Y. 1997), aff’d on other grounds, 156 F.3d 321 (2d Cir. 1998); Silk v. City of Chicago, 1996 WL 312074, at *18-19 (N.D. Ill. 1996) (collecting cases). Holding enforceable: Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 532-534 (E.D.Pa. 2001) (Title II community integration claim enforceable under § 1983); Hanson v. Sangamon County Sheriff’s Department, 991 F. Supp. 1059 (C.D. Ill. 1998) (detainee with deafness permitted to proceed with effective communication claim, without discussion). See also Hartley, “Enforcing Federal Civil Rights Against Public Entities After Garrett,” 28 J. Coll. & Univ. L. 41, 76 n.195 (2001) (collecting cases).
(5) FMLA: the cases are divided. Compare Knussman v. State, 16 F. Supp.2d 601 (D.Md. 1998) (holding actionable under § 1983), and O’Hara v. Mt. Vernon Board of Education, 16 F. Supp.2d 868 (S.D. Ohio 1998) (holding not actionable).
(6) FERPA – pending in the Supreme Court. Doe v. Gonzaga University, 24 P.3d 390 (Wash. 2001), cert. granted, 122 S. Ct. 865 (Jan. 11, 2002).
c. Although state statutes generally cannot form the basis of a § 1983 action, state statutes may define what is a constitutionally protected property interest, Systems Contractors Corporation v. Orleans Parish School Board, 148 F.3d 571, 574 n.16 (5th Cir. 1998); Samuel v. Holmes, 138 F.3d 173, 176 n.14 (5th Cir. 1998), or liberty interest, Sandin v. Conner, 515 U.S. 472 (1995) (state-created liberty interest exists when state law or procedures create mandatory objective criteria, the violation of which imposes “atypical and significant hardship”); Felce v. Fiedler, 974 F.2d 1484, 1489 (7th Cir. 1992) (state-created liberty interest in avoiding administration of anti-psychotic drugs); Clarkson v. Coughlin, 898 F. Supp. 1019, 1040 (S.D.N.Y. 1995) (state-created liberty interest in having sign language interpreters for deaf inmates at parole-related hearings). See also Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997), cert. denied sub nom Guerra v. Carlo, 523 U.S. 1036 (1998).
6. Suing federal agencies or officials
a. § 501 – employment discrimination by federal agencies is actionable under § 501 of the Rehabilitation Act, 29 U.S.C. § 791.
b. § 504 -
i. § 504 of the Rehabilitation Act prohibits federal executive agencies and the Postal Service from discriminating in any of their programs or activities against qualified individuals with disabilities. 29 U.S.C. § 794.
ii. Although § 504 overlaps § 501 in its application to federal employees, the courts are split as to whether individuals may sue federal employers under both §§ 501 and 504. See, e.g., Prewitt v. United States Postal Service, 662 F.2d 292, 301-304 (5th Cir. 1981) (holding claims available under both sections, but reading into § 504 administrative exhaustion requirements of § 501); Rivera v. Heyman, 157 F.3d 101, 104 (2d Cir. 1998) (recognizing split in circuits, but holding § 501 is exclusive remedy for disability discrimination in employment claims by federal employees).
iii. Damages are not available, however, against the federal government or its agencies under § 504, because it does not waive the federal government’s sovereign immunity. Lane v. Pena, 518 U.S. 187 (1996).
c. Congressional Accountability Act of 1995 – applies to various federal legislative entities, including Congress. 2 U.S.C. §§ 1301(3) and 1331(a). It adopts certain liability and remedy provisions of the ADA, the Rehabilitation Act, and the FMLA, among others. 2 U.S.C. § 1302, § 1311(a)(3) and (b)(3) (Rehabilitation Act § 501 and ADA Title I), § 1312 (FMLA), and § 1331 (ADA Titles II and III).
d. “Bivens” actions
i. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the court implied a cause of action for damages against federal agents who violate the Constitution.
ii. A Bivens action may only be brought against individuals in their individual capacity; such claims may not be brought against federal agencies or agents acting in their official capacities. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 483-486 (1994).
iii. Some constitutional violations are not actionable under Bivens. Id. at 484 n.9. See “Removing the ‘Special’ from the ‘Special Factors’ Analysis in Bivens Actions,” 28 Creighton L. Rev. 795 1995).
7. “New” efforts to expand immunity
a. Any statute passed by Congress must be supported by valid constitutional authority.
b. Even suits against local governments (with no 11th Amendment immunity), and suits against the states under Ex parte Young, depend on a showing that Congress was empowered to enact the laws sued under.
c. The principal sources of Congressional authority
i. 14th Amendment power – as reflected above (see §§ 2(a)(iii)(1) and (2)(a)), many courts have held that the ADA and § 504, for example, are not valid 14th Amendment legislation, so we have to look for another source.
ii. Commerce clause
(1) Many antidiscrimination laws are also based on Congress’ Commerce Clause authority. See, e.g., 42 U.S.C. § 12101(b)(4) (ADA); Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 202 et seq. (5th Cir. 2000) (FHAA); Oxford House-C v. City of St. Louis, 77 F.3d 249, 251 (8th Cir. 1996) (FHAA).
(2) While Commerce Clause legislation cannot abrogate the states’ 11th Amendment immunity from damage claims, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), valid Commerce Clause legislation will support Ex parte Young actions against the states, as well as claims against local governments.
(3) But recent Supreme Court decisions have narrowed Congressional power to regulate interstate commerce. See United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).
(a) The Court has held that valid Commerce Clause legislation can regulate (1) instrumentalities of interstate commerce, (2) channels of interstate commerce, or (3) those things having a substantial effect on interstate commerce. Lopez, supra, 514 U.S. at 558-59.
(b) In its recent cases, the Court has narrowed the concept of “substantial effects,” and has focused on the economic impact of the activity. See Lopez and Morrison, supra.
(4) Advocates must be prepared for these Commerce Clause arguments, and might rely on, among other things, the fact that:
(a) Courts have “long recognized the broadly defined ‘economic’ aspect of discrimination.” Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000) (upholding FHAA), citing Heart of Atlanta Motel, Inc. v. United States, 397 U.S. 241, 257-58 (1964).
(b) Even relatively recent cases have recognized that employment is an area that Congress may regulate under the Commerce Clause. EEOC v. Wyoming, 460 U.S. 226, 243 (1983); United States v. Furrow, 125 F. Supp. 2d 1178, 1183 (C.D. Cal. 2000). Presumably, this explains why the Supreme Court found Ex parte Young actions available for ADA Title I enforcement. Garrett, supra, 121 S. Ct. at 968 n.9.
(c) See also “A Discussion of Congressional Authority to Enact Title II of the Americans with Disabilities Act under the Commerce Clause” (Bazelon Center 7/01), online at http://www.protection andadvocacy.com/private/dlpbazelonfactsheetre.htm (NAPAS Members Only).
iii. Spending Clause
(1) While the ADA is not Spending Clause legislation, because it comes with no federal funding, other laws used by disability advocates are Spending Clause legislation, like the Rehabilitation Act, the Medicaid Act, and IDEA.
(2) There are several new challenges to Spending Clause authority.
(a) § 504 has been challenged on the grounds that the requirements it imposes as a condition of accepting federal funding are not sufficiently related to the federal interest in the statute, citing, for example, South Dakota v. Dole, 483 U.S. 203, 207-208 (1987). Such a claim was rejected in Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 521-523 (E.D. Pa. 2001), but apparently accepted in Koslow v. Commonwealth of Pennsylvania, 158 F. Supp.2d 539, 544 (E.D. Pa. 2001), appeal pending.
(b) Conditioning receipt of funds on a waiver of 11th Amendment immunity states has also been challenged as unduly coercive, citing, for example, College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 687 (1999). This claim has been rejected. See Jim C. v. U.S., 235 F.3d 1079, 1081 (8th Cir. 2000), cert. denied sub nom Arkansas Dept. of Educ. v. Jim C., 121 S. Ct. 2591 (2001); Bowers v. National Collegiate Athletic @#!*% ‘n, 171 F. Supp.2d 389, 408-409 (D.N.J. 2001), appeal pending; Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 522-523 (E.D.Pa. 2001); Doe v. State of Nebraska, 2002 WL 225907, at *8 (D.Neb. Feb. 14, 2002). See also Robinson v. Kansas, 117 F. Supp.2d 1124, 1134 (D.Kan. 2000).
(c) Such waivers have also been challenged on the grounds that the state did not exercise a knowing waiver of immunity because the requirements of the law were unclear, citing, for example, Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). While a somewhat similar claim was successful in Garcia, supra, 280 F.3d at 113-115, they have more often been rejected. See Bradley v. Arkansas Dept. of Educ., 189 F.3d 745, 753 (8th Cir. 1999) (regarding IDEA), vacated in part on other grounds sub nom Jim C. v. Arkansas Dept. of Educ., 197 F.3d 958 (8th Cir. 1999); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 521 (E.D.Pa. 2001) (regarding § 504).
(d) Challenges to §504 enforcement based on the “inferiority” of the Spending Clause
(i) Another theory concocted by the new advocates for “states rights” is that § 1983 and Ex parte Young is not available to enforce Spending Clause legislation because such legislation is merely in the nature of a contract, and federal law is supreme only when enacted as part of Congress’ enumerated powers. One district court has accepted this theory, Westside Mothers v. Haveman, 133 F. Supp.2d 549, 561-562 (E.D. Mich. 2001), appeal pending, but it has been rejected by others. See Rancourt v. Concannon, 175 F. Supp.2d 60, 62 (D.Me. 2001) (and cases cited); Boudreau v. Ryan, 2001 WL 840583, at *5 (N.D. Ill. May 2, 2001); Antrican v. Buell, 158 F. Supp.2d 663, 669 n.5 (E.D.N.C. 2001), appeal pending. See also Bryson v. Shumway, 177 F. Supp.2d 78, 87 (D.N.H. 2001) (rejecting Westside Mothers claim that Medicaid Act is not enforceable via Ex parte Young actions). See also Frew v. Gilbert, 109 F. Supp.2d 579, 665-670 (E.D.Tex. 2000), appeal pending.
(ii) For more on this theory, see Jane Perkins, “Sovereign Immunity Claims in Medicaid Cases,” (Updated: March 22, 2002).
d. States are also continuing to challenge the applicability of Ex Parte Young on a number of grounds in addition to those suggested in § 3(a)(iii) above.
i. Statutory language arguments regarding the ADA and § 504
(1) Some states contend that Ex parte Young actions cannot be brought against state officials under Title II, § 504, or the FMLA, arguing that the language in those statutes only prohibits discrimination by entities, and individual defendants are thus not proper parties.
(2) This argument was accepted in Walker v. Snyder, 213 F.3d 344, 346, 347 (7th Cir. 2000), cert. denied sub nom United States v. Snyder, 531 U.S. 1190 (2001); Koslow v. Commonwealth of Pennsylvania, 158 F. Supp.2d 539, 546 (E.D.Pa. 2001), appeal pending; Lewis v. New Mexico Dept. of Health, 94 F. Supp.2d 1217, 1230 (D.Colo. 2000), aff’d on other grounds, 261 F.3d 970 (10th Cir. 2001).
(3) It has been rejected by many other courts. Carten v. Kent State University, 282 F.3d 391, 396-397 (6th Cir. 2002) (Title II claim); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001) (statutory language of the ADA providing for “public entity” liability does not bar Ex parte Young claim against a state officials in their official capacities, but only precludes individual capacity claims); Gregory v. Administrative Office of the Courts of State of New Jersey, 168 F. Supp.2d 319, 328-330 (D.N.J. 2001); Doe v. Rowe, 156 F. Supp.2d 35, 56-57 (D.Me. 2001); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 530-532 (E.D.Pa. 2001). Without specifically discussing the statutory language argument, several courts have permitted such claims under Ex parte Young. See, e.g., Sandoval v. Hagan, supra, 197 F.3d at 500-501, reversed on other grounds sub nom Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1286-1287 (10th Cir. 1999); Nelson v. Miller, 170 F.3d 641, 646-47 (6th Cir. 1999); Armstrong v. Wilson, 124 F.3d 1019, 1025-1026 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998); Brennan v. Stewart, 834 F.2d 1248, 1251-1253, 1260 (5th Cir. 1988). Compare Hibbs v. Department of Human Resources, 273 F.3d 844, 871-872 (9th Cir. 2001) (finding that some supervisory employees can be sued as employers under the FMLA, but refusing to decide because of inadequate briefing).
(4) The argument is also contradicted by Garrett itself, in which the Court expressly stated that Title I of the ADA still governed the conduct of states and that state officials could be subjected to Ex parte Young actions in federal court for injunctive relief for violations of Title I. Garrett, supra, 121 S. Ct. at 968 n. 9.
ii. States have also begun to argue that Ex parte Young actions are unavailable under ADA Title II and §504 because of Congressional intent.
(1) This argument relies on a footnote in Seminole Tribe, suggesting that Congress did not intend to authorize Ex parte Young actions against state officials since the duties imposed by federal statute at issue in that case (the Indian Gaming Regulatory Act) were “not of the sort likely to be performed by an individual state executive officer or even a group of officers.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 75 n. 17 (1996).
(2) Such an argument should be inapplicable to Title II or § 504, because in virtually all areas covered by those laws, states cannot act except through their officials.
(3) Moreover, the Ex parte Young doctrine is based on the understanding that official capacity suits are a way of pleading an action against a state entity of which an official is an agent. These issues have been briefed extensively by the Department of Justice. See brief of United States in McGarry v. Director, Dep’t of Revenue, State of Missouri, No. 00-1597 (8th Cir.), available at http://www.usdoj.gov/crt/briefs/mcgarry.htm.
iii. “Special Sovereignty Interests”
(1) In Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), the principal opinion of the Court declined to permit a tribal land and water claim to proceed against state officials under Ex parte Young. This portion of the principal opinion, which did not command a majority, concluded that the Ex parte Young doctrine was inapplicable in the unique circumstances of this case (the functional equivalent of an action to quiet title), because of its impact on “special sovereignty interests” and because a state court forum was available. Id. at 281-87. Seven justices rejected the principal opinion’s analysis, concluding that it was improper to consider whether special sovereign interests were implicated and whether a state forum was available. Id. at 291-97 (O’Connor, J., concurring in part); 297-319 (Souter, J., dissenting).
(2) (Nonetheless, states have repeatedly relied on Coeur d’Alene to argue that Ex parte Young actions are impermissible in a variety of contexts on the ground that the issues involved implicate special sovereignty interests. These arguments have been raised in disability discrimination cases, but so far, have been rejected. See, e.g., Carten v. Kent State University, 282 F.3d 391, 397 (6th Cir. 2002); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 978 (10th Cir. 2001) (no special sovereignty interest in administering Medicaid waiver program receiving federal funding); John Roe #2 v. Ogden, 253 F.3d 1225, 1234 (10th Cir. 2001) (Coeur d’Alene exception not applicable in cases seeking purely injunctive relief); J.B. ex rel Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir. 1999) (no special sovereignty interest in administering welfare program funded in part by federal money); Marie O. v. Edgar, 131 F.3d 610, 616-17 & n.13 (7th Cir. 1997) (no special sovereignty interest in administering early intervention services); Bonnie L. v. Bush, 180 F. Supp.2d 1321, 1327-1328 (S.D. Fla. 2001) (EPSDT case); Robinson v. Kansas, 117 F. Supp.2d 1124, 1136-37 (D. Kan. 2000) (no special sovereignty interest in financing school system); Neiberger v. Hawkins, 70 F. Supp.2d 1177, 1189-90 (D. Colo. 1999) (no special sovereignty interest in welfare of NGRI patients).
(3) Challenges to Ex Parte Young continue, however. The Supreme Court recently agreed to decide whether Ex parte Young claims can proceed against state officials under the Federal Telecommunications Act. Mathias v. Worldcom Technologies, Inc., 532 U.S. 903 (2001).
iv. Challenges based on “detailed remedial schemes”
(1) States have argued, based on language in Seminole Tribe, supra, 517 U.S. at 75 n.17, that Ex parte Young actions cannot be brought to enforce statutes with a detailed remedial scheme indicating Congressional intent to limit the available remedies. In Seminole, the statute in question dealt with Indian gaming, and imposed a very limited scheme of enforcement against states. The Court’s concern in Seminole was that an Ex parte Young action against state officials would enable the plaintiffs to obtain more extensive remedies than those set forth in the provision targeting states.
(2) (In the disability context, the argument has generally been rejected, and no such intent to limit remedies found, either because the remedial scheme as written was sufficiently broad (for example, with regard to Title II, § 504, or IDEA), or because there was in fact no detailed remedial scheme (the Medicaid Act, for example). See, e.g., Gibson v. Ark. Dep’t of Correction, 265 F.3d 718, 720-721 (8th Cir. 2001) (Title II); Randolph v. Rodgers, 253 F.3d 342, 346-348 (8th Cir. 2001) (Title II); Frazier v. Simmons, 254 F.3d 1247, 1253 n.2 (10th Cir. 2001) (Title I); Marie O. v. Edgar, 131 F.3d 610, 615-617 (7th Cir. 1997) (IDEA); Maryland Psychiatric Soc., Inc. v. Wasserman, 102 F.3d 717, 719 at n.* (4th Cir. 1996) (Medicaid Act); Kevin M. v. Bristol Township School Dist., 2002 WL 73233, at *10 (E.D.Pa. Jan. 16, 2002) (IDEA); Bonnie L. v. Bush, 180 F. Supp.2d 1321, 1327-1328 (S.D. Fla. 2001) (EPSDT case); Jane Doe v. Sylvester, 2001 WL 1064810, at *5 (D.Del. Sept. 11, 2001) (Title II and § 504); Reynolds v. Giuliani, 118 F. Supp.2d 352 (S.D.N.Y. 2000) (Medicaid Act); Parry v. Crawford, 990 F. Supp. 1250, 1255 (D.Nev. 1998) (Medicaid Act). See also Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (explicitly recognizing Ex parte Young actions for prospective injunctive relief against state officials under Title I of the ADA); Joseph A. v. Ingram, 275 F.3d 1253, 1264 (10th Cir. 2002) (“Even if the Adoption Assistance Act provided for a private cause of action in addition to its funding remedies, that would not foreclose claims under Ex parte Young unless the cause of action was more limited than what would be available under Ex parte Young.”). Contra: Westside Mothers v. Haveman, 133 F. Supp.2d 549, 574-575 (E.D.Mich. 2001) (Medicaid Act).
v. Challenges based on official discretion.
(1) Some courts have suggested that Ex parte Young suits are impermissible if they would require that the courts interfere with discretionary, rather than simply ministerial, acts by state officials Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 976 (10th Cir. 2001). Compare Wright & Miller, Federal Practice & Procedure § 3524 at nn. 70.1-70.6 (2001 Supp.).
(2) This rule does not preclude judicial review under Ex parte Young of discretionary acts that violate federal law. Lewis, supra, 261 F.3d at 976. See also the ATTAC/NAPAS Fact Sheet: “Sovereign Immunity Claims in Medicaid Cases,” by Jane Perkins (12/31/01), at nn. 44-46, http://www.protectionandadvocacy.com/private/FactSheetNHeLP102.htm102.htm (for NAPAS Members Only).
8. Other possibilities
- 11th Amendment immunity does not bar suits against the states by the federal government. Garrett, supra, 531 U.S. at 374 n. 9. But cf. U.S. v. Mississippi Dep’t of Public Safety, 159 F. Supp.2d 374 (S.D. Miss. 2001) (holding that while the federal government can sue for damages to remedy a pattern of intentional discrimination on behalf of the United States or the citizens of a state, it cannot sue for money damages on behalf of a private individual).
- Erickson v. Board of Governors, 207 F.3d 945, 952 (7th Cir. 2000), cert. denied sub nom U.S. v. Bd. of Governors, 531 U.S. 1190 (2001) (“All our holding means is that private litigation to enforce the ADA may not proceed in federal court. Erickson may repair to Illinois court–for although states may implement a blanket rule of sovereign immunity, see Alden . . ., Illinois has not done this. Having opened its courts to claims based on state law, including its own prohibition of disability discrimination by units of state government, Illinois may not exclude claims based on federal law.”) (emphasis in original; citations omitted).
- State courts of claims
- Suing under state law in state court