#12421 - Sovereign Immunity And The 11th Amendment - Federal Courts Author-1

• VIII. Sovereign Immunity and the Eleventh Amendment

  Federal Sovereign Immunity

The doctrine of sovereign immunity bars unconsented suits against the United States. The doctrine is a function of the courts’ practical inability to enforce unconsented judgments against the United States. Where money damages are issue, the doctrine has a constitutional foundation in the Appropriation’s Clause’s admonition that “No money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.”

“Officer suits” have traditionally been available as an alternative to suits against the United States. The Court has traditionally permitted actions against officers in their official capacity for damages (Little) and equitable relief (United States v. Lee). The traditional rule was that sovereign immunity did not apply to an action for equitable relief unless the United States was defendant or a necessary party (Lee). However, the Court has more recently held that officer suits seeking to compel official action are barred by sovereign immunity unless the officer’s action is unconstitutional or ultra vires (Larson).

Eleventh Amendment

BACKGROUND. Article III, § 2 provides that the judicial power shall extend to controversies “between a state and citizens of another state.” Chisholm v. Georgia held that this clause permitted the federal courts to exercise jurisdiction over an action filed by a South Carolina citizen against the state of Georgia. Almost immediately, Congress proposed the Eleventh Amendment.

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Eleventh Amendment has been read broadly to apply to admiralty cases and to suits brought by foreign nations or in-state citizens. It has also been read to prohibit unconsented private action against a state brought on a federal claim in state court (Alden) or before an administrative agency (Federal Maritime Commission v. South Carolina Ports Authority).

“ARISING UNDER” CASES. Hans v. Louisiana held that the Eleventh Amendment barred federal courts from exercising “arising under” jurisdiction in a claim brought by a citizen against a State. Justice Brennan argued that Hans was wrongly decided, and that the Eleventh Amendment only meant to preclude jurisdiction based on Article III’s state-citizen diversity clause (Atascadero, dissent). Justice Souter took a similar view in his Seminole Tribe dissent.

EXCEPTIONS. The Eleventh Amendment does not apply (1) where the State has waived it, either explicitly or by its litigation conduct; (2) where a state-court defendant appeals a criminal or civil action initiated by the State to the Supreme Court (Cohens); (3) to actions brought by another State or the United States; or (4) where Congress has abrogated the Eleventh Amendment pursuant to Section 5 of the Fourteenth Amendment.

Waiver. The State’s waiver of sovereign immunity in state court does not constitute a waiver of Eleventh Amendment immunity (Smith v. Reeves).

Waiver by Litigation Conduct. Whether particular litigation activities amount to a waiver is a question of federal law (Lapides). Counterclaims. The Circuits are divided as to whether a state’s voluntary appearance as a plaintiff in federal court waives the state’s sovereign immunity with respect to compulsory counterclaims. Removal. The Court has held that a state’s removal of an action to federal court constitutes a waiver of Eleventh Amendment immunity, at least in the context of state-law claims over which the state has explicitly waived immunity from state-court proceedings. (Lapides).

Constructive Waiver. Consent to suit cannot be predicated upon “the State’s mere presence in a field subject to congressional regulation” (College Savings Bank).

The Spending Clause and Waiver. In Sossamon, the Court affirmed that Congress can condition grants of federal funds on state waiver of sovereign immunity. However, the Court held that “a State’s consent to suit must be unequivocally expressed and that the scope of any waiver will be strictly construed in favor of the sovereign.” According to this principle, a general waiver of sovereign immunity will not be read to encompass suits for money relief absent clear authorization of that remedy.

LOCAL GOVERNMENTS. Suits against local governments are not barred by the Eleventh Amendment (Lincoln County). However, suits against statewide agencies are barred by the Amendment (Edelman v. Jordan).

ABROGATION. In order to determine whether Congress has abrogated States’ sovereign immunity, the Court asks (1) whether Congress has “unequivocally expressed its intent to abrogate the immunity” and (2) whether Congress has acted “pursuant to a valid exercise of power.” Article I does not authorize Congress to abrogate the Eleventh Amendment (Seminole Tribe)¹ (with the exception of the bankruptcy clause, Central Va. Community College). However, Congress may abrogate the Eleventh Amendment when it legislates pursuant to the Fourteenth Amendment, § 5 (Fitzpatrick). A Section Five statute can authorize federal courts to award retroactive damages relief, to be paid from the state treasury, as long as “congressional authorization is clearly present.”

Limits on Congress’s Power to Abrogate Under § 5. Section 5 legislation is not valid unless there is (1) congruence and (2) proportionality between the constitutional violation to be prevented and the means—including abrogation of the states’ immunity—adopted to that end (City of Boerne). In considering whether there is proportionality, violations by local governments are not relevant (Garrett) unless local governments are typically considered arms of the state for the particular type of service (Tennessee v. Lane, local courts are considered arms of the State).

In remedying violations of the Due Process Clause, Congress lacks the power to reach (1) unintentional deprivations of due process interests and (2) violations of due process for which an adequate state remedy exists, at least if Congress fails to identify a pattern of un-remedied constitutional violations (Florida Prepaid). However, Congress clearly has authority to create “private remedies against the States for actual violations of the Constitution” (United States v. Georgia).

DIGNITARY INTEREST. The Court has indicated that the Eleventh Amendment does not exist solely to prevent federal court judgments that must be paid out a State’s treasury. It also serves to avoid “the indignity of subjecting a State to the coercive process of judicial tribunals” (Seminole Tribe).

Officer Suits and Ex Parte Young

In Ex Parte Young, the Court held that the Eleventh Amendment did not bar suits against state officers to enjoin official action that is in violation of federal law. The Court reasoned that, because state officers have no authority to violate federal law, their illegal acts are stripped of state authority. Compare to Osborn v. Bank of the United States, where the Court indicated that the Eleventh Amendment was limited to suits in which a State was the party of record.

Ex Parte Young and the Fourteenth Amendment. As Ex Parte Young demonstrates, an officer can be engaged in “state action” for purposes of the Fourteenth Amendment but be “stripped of state authority” for purposes of the Eleventh Amendment.

IDENTIY OF THE PLAINTIFF IRRELEVANT. In Virginia Office for Protection & Advocacy, the Court permitted a state agency to sue a state official from the same state, in order to obtain prospective relief under federal law. The Court reasoned that there was “no warrant in our cases for making the validity of an Ex Parte Young action turn on the identity of the plaintiff.”

EXCEPTIONS. Retroactive Damages Relief. The Eleventh Amendment prevents a federal court from awarding damages to compensate for past injuries, when those damages will be paid by the state treasury (Edelman). However, the Eleventh Amendment does not prevent a federal court from requiring State officials to spend state money on remedial education programs designed to provide relief past constitutional violations (Milliken v. Bradley). The distinction between Edelman and Milliken is elusive, but may be a distinction between a damages...