Ability to sue state governments narrowed.

Over the last few years, the Supreme Court has made it much more difficult to sue state governments, even on federal claims. In a series of 5-4 rulings, the Court has used federalism to immunize state governments from suit in both state and federal courts.

In three decisions handed down on June 23, 1999, the Court greatly expanded the immunity of state governments from suit.(1) After these decisions, what options does an attorney have in seeking relief from a state government?

The answer, as embodied in the current law, can be summarized in five points:

* State governments cannot be sued in state court without their consent, even on federal claims.

* State governments may be sued in federal court under laws adopted by Congress under [sections] 5 of the Fourteenth Amendment. But state governments may not be sued in court under laws adopted by Congress under any other authority.

* State governments may be sued in state or federal court if they expressly consent to suit.

* The U.S. government may sue state governments in federal court.

* State officers may be sued for injunctive relief, and they may be sued for damages if their conduct is not protected by immunity.

State governments cannot be sued in state court without their consent, even on federal claims.

In Alden v. Maine, one of the June decisions, the Court ruled that sovereign immunity protects state governments from being sued in state courts without their consent. Alden involved a group of probation officers in Maine who claimed they were owed overtime pay under the federal Fair Labor Standards Act. Initially they sued in federal court, but their suit was dismissed based on the Eleventh Amendment. The officers then refiled their claim in state court, which has concurrent jurisdiction to hear claims under the Fair Labor Standards Act.

The Maine Supreme Judicial Court ruled that the suit was barred because a state has sovereign immunity and cannot be sued in state court without its consent.

The Supreme Court, in a 5-4 decision, affirmed the holding. Justice Anthony Kennedy wrote the opinion, joined by Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas. The Court held that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts."(2)

The Court recognized that the Constitution does not speak to the immunity of state governments in state courts. The Eleventh Amendment applies only in federal courts. The Court, however, said that there is a broader principle of sovereign immunity.

Kennedy declared,

   [T]he sovereign immunity of the states neither derives from nor is limited
   by the terms of the Eleventh Amendment. Rather, as the Constitution's
   structure, and its history, and the authoritative interpretations by this
   Court make clear, the states' immunity from suit is a fundamental aspect of
   the sovereignty which states enjoyed before the ratification of the
   Constitution, and which they retain today...."(3)

The Court then concluded that Congress, by statute, cannot authorize suits against states in state courts. Kennedy stressed the importance of protecting state governments from federal control. He wrote, "In light of history, practice, precedent, and the structure of the Constitution, we hold that the states retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation."(4)

This sovereign immunity is seemingly without exception. State governments never can be sued in state court without their consent.

State governments may be sued in federal court under laws adopted by Congress under [sections] 5 of the Fourteenth Amendment. But state governments may not be sued in court under laws adopted by Congress under any other authority.

In 1989, in Pennsylvania v. Union Gas Co., the Supreme Court held that Congress may authorize suits against state governments and override the Eleventh Amendment pursuant to any congressional power so long as the text of the law expressly permits states to be sued in federal court.(5) In 1996, in Seminole Tribe v. Florida, the Court overruled Union Gas and held that Congress may authorize suits against states only when acting pursuant to [sections] 5 of the Fourteenth Amendment and not pursuant to other federal powers, such as the Commerce Clause.(6) The overruling occurred because Clarence Thomas became a justice in 1991, and he joined with the four dissenters in the Union Gas case--Kennedy, O'Connor, Rehnquist, and Scalia--to create the majority to overrule it.

Seminole Tribe reaffirmed that states may be sued pursuant to laws adopted by Congress under [sections] 5. In Fitzpatrick v. Bitzer, the Court held that the Fourteenth Amendment was meant as a limit on state sovereignty and that laws passed pursuant to it override the Eleventh Amendment.(7) In Fitzpatrick, the Court ruled that states may be sued for employment discrimination in violation of Title VII of the 1964 Civil Rights Act because this law had been applied to the states via [sections] 5 of the Fourteenth Amendment. But after Seminole Tribe, no other congressional power may be used to authorize suits against state governments.

Thus, the issue often will be whether a particular statute was or could have been adopted under [sections] 5, in which case the state can be sued; or whether it was enacted under another congressional power, in which case the state will have immunity in both state and federal court. The Court confronted this issue in another case decided on June 23: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank.

College Savings Bank sued Florida Prepaid Postsecondary Education Expense Board for patent infringement for copying a system to help save money for college education. Congress had amended the patent laws to expressly allow suits against state governments,(8) But the Supreme Court ruled that this authorization is unconstitutional and that states cannot be sued in federal court for patent infringement without their consent.

Although patents unquestionably are property protected under the Due Process Clause, the Court rejected the argument that Congress had acted under [sections] 5 to protect patents. In City of Boerne v. Flores, the Court greatly narrowed the scope of Congress's power under [sections] 5, holding that Congress could not use the section to expand the scope of constitutional rights.(9)

In Florida Prepaid, the Court applied this ruling and said the authorization of suits against states for patent infringements could not be justified under the section because "Congress identified no pattern of patent infringement by the states, let alone a pattern of constitutional violations.(10) Because federal courts have exclusive jurisdiction to hear patent claims, Florida Prepaid means no court can hear patent suits against state governments.

The Court returned to the issue of Congress's authority to override the Eleventh Amendment in an important case argued in October. In Kimel v. Florida Board of Regents, the Court is considering whether a state can be sued in federal court for violating the federal Age Discrimination in Employment Act.(11) The issue is whether the law is a permissible exercise of Congress's authority under [sections] 5, in which case states can be sued in federal court for its violation. If the act is adopted under other congressional powers, states cannot be sued under it.

State governments may be sued in state or federal court if they expressly consent to suit.

A state may waive its immunity and consent to be sued in federal court. Although allowing such waivers may seem inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction, it is firmly established that "if a state waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action."(12)

But the waiver must be explicit; there is no longer any doctrine of constructive or implied waiver of the Eleventh Amendment. In the third case decided on June 23, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, the Court held that the test for a waiver is a "stringent one"(13) and that only an express waiver is sufficient to permit suit.

College Savings Bank also sued the Florida board on a Lanham Act claim for deceptive advertising. The bank argued that the state had waived its immunity by voluntarily engaging in business activities and violating federal law. The Court, again issuing a 5-4 ruling, rejected this as sufficient to constitute a waiver of sovereign immunity.

The U.S. government may sue state governments in federal court.

It is firmly established that the Eleventh Amendment does not bar federal court suits by the U.S. government against a state.(14) However, now pending before the Supreme Court in United States v. Vermont Agency of Natural Resources is the question of whether a state may be sued in a qui tam action by a person suing in the name of the federal government.(15)

Under the federal False Claims Act, individuals may sue to recover money for the federal treasury. A state employee sued the state in the name of the U.S. government for allegedly making fraudulent claims. The Eleventh Amendment does not preclude the United States from suing a state government. So does the amendment bar a suit when a private person sues in the name of the United States?

State officers may be sued for injunctive relief, and they may be sued for damages if their conduct is not protected by immunity.

The Supreme Court has long held that state officers may be sued.

In Ex parte Young, the Court held that the Eleventh Amendment does not preclude suits against state officers for injunctive relief, even when the remedy will enjoin the implementation of an official state policy.(16) In other words, if a plaintiff wants to enjoin a state government, the suit should name the officer responsible as the defendant.

There are three major exceptions to Ex parte Young. First, state officers may not be sued on pendent state law claims. In Pennhurst State School & Hospital v. Halderman, the Court held that the Eleventh Amendment bars federal courts from enjoining state officers from violating state law(17) A plaintiff may only sue a state officer in federal court on federal claims; no supplemental state law claims can be brought.

Second, state officers may not be sued to enforce federal statutes that contain comprehensive enforcement mechanisms. In Seminole Tribe, Rehnquist, writing for the Court, stated, "[W]here Congress has prescribed a detailed remedial scheme for the enforcement against a state of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young."(18) Unfortunately, it is still unclear which federal laws are seen as having comprehensive enforcement mechanisms that preclude suits against state officers.

Finally, state officers cannot be sued to quiet title to submerged lands. In Idaho v. Coeur d'Alene Tribe, the Court carved this new, quite narrow exception to Ex parte Young. The Court held that states have a special sovereign interest in such claims.(19)

These cases all involve the ability to sue state officers for injunctive relief. State officers may also be sued for money damages. But it must be remembered that all officers have some degree of immunity from damage claims. A few--judges in a judicial capacity, legislators in a legislative capacity, prosecutors in a prosecutorial capacity--have absolute immunity to civil suit for money damages. Any other state officer has qualified immunity and can be held liable only if it is proven that the officer violated a clearly established right that a reasonable officer should have known.(20)

Also, suits against state officers for money damages are not allowed if the relief will necessarily come from the state treasury through something other than a state's voluntary choice to indemnify its officers. In Edelman v. Jordan, the Court held that a suit against an officer for retroactive money damages to be paid by the state is barred by the Eleventh Amendment unless the state consents to the suit.(21)

But state indemnification policies are irrelevant for Eleventh Amendment analysis and do not prevent federal court relief against individual officers. That is, an officer of the state cannot claim Eleventh Amendment immunity on the grounds that state law requires that the officer be indemnified with funds from the state treasury.(22) The state has voluntarily chosen to indemnify the officer and should not be able to invoke the Eleventh Amendment because of its choice to provide compensation out of state resources.

A litigant seeking relief from a state government faces enormous obstacles that have grown substantially with recent decisions. In representing clients, attorneys must study the decisions to find limited ways around the obstacles.

Total immunity

In three decisions, the Supreme Court used federalism to immunize state governments from suit in both state and federal courts.

Notes

(1.) Alden v. Maine, 119 S. Ct. 2240 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Say. Bank, 119 S. Ct. 2199 (1999); College Say. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999).

(2.) Alden, 119 S. Ct. 2240, 2246.

(3.) Id. at 2247.

(4.) Id. at 2266.

(5.) 491 U.S. 1 (1989).

(6.) 517 U.S. 44 (1996).

(7.) 427 U.S. 445 (1976).

(8.) Patent and Plant Variety Protection Remedy Clarification Act, 35 U.S.C.S. [subsections] 271(h), 296(a) (1999).

(9.) 521 U.S. 507 (1997).

(10.) Florida Prepaid, 119 S. Ct. 2199, 2207.

(11.) 139 F.3d 1426 (11th Cir. 1998), reh'g, en banc, denied, 157 F.3d. 908 (11th Cir. 1998), cert. granted, 119 S. Ct. 901 (U.S. Jan. 25,1999) (No. 98-791).

(12.) Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985).

(13.) College Sav. Bank, 119 S. Ct. 2219, 2226 (citation omitted).

(14.) See, e.g., United States v. Mississippi, 380 U.S. 128, 140-41 (1965); United States v. Texas, 143 U.S. 621,642-46 (1892).

(15.) 162 F.3d 195 (2d Cir. 1998), cert. granted, 119 S. Ct. 2391 (U.S. June 24, 1999) (No. 98-1828).

(16.) 209 U.S. 123 (1908).

(17.) 465 U.S. 89 (1984).

(18.) 517 U.S. 44, 74.

(19.) 521 U.S. 261 (1997).

(20.) Harlow v. Fitzgerald, 457 U.S. 800 (1982).

(21.) 415 U.S. 651 (1974).

(22.) See, e.g., Wilson v. Beebe, 770 F.2d 578, 587-88 (6th Cir. 1985); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985), cert. denied, 479 U.S. 816 (1986); see also Leeds v. Sexson, 1 F.3d 1246 (9th Cir. 1993), reported in full at 1993 U.S. App. LEXIS 20116 (9th Cir. July 29, 1993).

Erwin Chemerinsky is Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School in Los Angeles.