1. Many civil rights statutes have attempted to authorize damages against the states by abrogating states' sovereign immunity. Beginning in the mid-1990s, however, the Supreme Court expanded the doctrine of sovereign immunity, based not on the text of the Constitution but rather on “fundamental postulates implicit in the constitutional design." Alden v. Maine, 527 U.S. 706, 728-29 (1999).
    1. The Court invalidated the abrogation of sovereign immunity in several civil rights statutes. Nevertheless, as explained below, the Court upheld the abrogation of sovereign immunity in later cases involving other statutory provisions.
      1. See Rochelle Bobroff, Scorched Earth and Fertile Ground: The Landscape of Suits Against the States to Enforce the ADA, 41 Clearinghouse Review 298 (Sept.–Oct. 2007). See also Harper Jean Tobin, The Genetic Information Nondiscrimination Act of 2008: A Case Study of the Need for Better Congressional Responses to Federalism Jurisprudence, 35 J. of Legis. 113 (2009).
        1. Moreover, an alternative approach authorizing damages which is utilized in the Rehabilitation Act -- tying the waiver of sovereign immunity to the receipt of federal funds -- has to date been very successful in many federal courts of appeals. Rochelle Bobroff & Harper Jean Tobin, Strings Attached: The Power of the Federal Purse Waives State Sovereign Immunity for the Rehabilitation Act, 42 Clearinghouse Review 16 (May-June 2008). http://www.law.cornell.edu/uscode/text/29/701
    1. “fundamental postulates implicit in the constitutional design."
      1. Americans with Disabilities Act, 42 U.S.C. § 12101; Individuals with Disabilities Education Act, 20 U.S.C. § 1400; Civil Rights Act, 42 U.S.C. § 2000e; Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 Fair Labor Standards Act, 29 U.S.C. § 216(b); Family Medical Leave Act, 29 U.S.C. § 2617(a)(2).
        1. Most of these laws either contain an express provision allowing suits against states or have been interpreted to allow for such suits. , 42 U.S.C. § 2000d-7.
          1. To remedy violations of these federal laws, an aggrieved individual may seek relief from states and/or state officials.
  3. BLACK'S
      1. ABROGATE abrogate (ab-r<<schwa>>-gayt), vb. To abolish (a law or custom) by formal or authoritative action; to annul or repeal. Cf. OBROGATE. — abrogation,n. Black's Law Dictionary (8th ed. 2004) , Page 18
      1. SUBROGATE subrogate (s<<schwa>>b-r<<schwa>>-gayt), vb. To substitute (a person) for another regarding a legal right or claim. [Cases: Subrogation 1.C.J.S. Subrogation §§ 2–15, 19, 91.] Black's Law Dictionary (8th ed. 2004) , Page 4476
  4. A.J.
      1. This mind map was created 03.06.2012 by Lisa Stinocher O'Hanlon using XMind software. http://www.xmind.net/share/hennalady/ http://angryjeweler.wix.com/write
        1. 8.1 enforcing federal rights against states and state officials
          1. http://federalpracticemanual.org/node/46
  6. In determining whether an agency is entitled to Eleventh Amendment immunity, the courts consider various factors, including 1. whether payment of a judgment resulting from the suit would come from the state treasury, 2. the status of the agency under state law, and 3. the agency’s degree of autonomy.
    1. Savage v. Glendale Union High School, 343 F.3d 1036, 1040-41 (9th Cir. 2003); Belanger v. Madera Unified School District, 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 Board of Education, 445 F.3d 227, 229 (3d Cir. 2006).
      1. State immunity rules apply to claims under state law.  See, e.g., Theobald v. Board of County Commissioners, 332 F.3d 414 (6th Cir. 2003).
        1. 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 state claims against a state or state agency dismissed on Eleventh Amendment grounds.  Raygor, 534 U.S. at 546.
          2. This applies even if the federal government is seeking recovery of damages on behalf of a individual, and damages in a suit by the individual would be barred by the Eleventh Amendment.  United States v. Mississippi Department of Public Safety, 321 F.3d 495, 499 (5th Cir. 2003).
  7. The Eleventh Amendment does not, however immunize local governments from private suits. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); see also Monell v. New York v. City Department of Social Services , 436 U.S. 658 (1978)..
  8. Ex parte Young 209 U.S. 123 (1908); 
    1. Private parties can sue state officials in their official capacity to enforce federal laws and regulations,
      1. BUT ONLY FOR
          1. must be an ongoing violation of federal law to support prospective relief. Green v. Mansour, 474 U.S. 64 (1985).
          2. relief may include notice to the plaintiff class of the availability of remedies under state law. Edelman v. Jordan, 415 U.S. 651 (1974).
  9. No damages are recoverable in Ex parte Young suits, but prospective relief may require the incidental expenditure of state funds.
  10. 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.
    1. The Fourth Circuit held in Lizzi v. Alexander, 255 F.3d 128, 137-38 (4th Cir. 2001) cert. denied sub nom. Lizzi v. Washington Metropolitan Area Transit Authority, 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 Chapter 8.2 of this MANUAL.
    1. 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.”
      1. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). See Robert Capistrano  Using Section 1983 to Raise Constitutional Claims in Garden-Variety Cases,  38 Clearinghouse Review 734, 741 (Mar.-Apr. 2005).
  12. States and state officials may not be sued in federal court for violations of state law committed in their official capacity regardless of the relief sought. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 121 (1984).
    1. BUT
      1. Federal courts have supplemental jurisdiction to hear state law claims against state officials sued in their individual capacity if the federal claims arise from the same subject matter and provide the federal court with jurisdiction.
        1. 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 University of Minnesota, 534 U.S. 533, 542 (2002).
  13. Tolling does apply to counties which do not have Eleventh Amendment immunity. Jinks v. Richland County, 538 U.S. 456 (2003).
  14. States waive their sovereign immunity under the Rehabilitation Act by accepting federal funds, regardless of the time period involved.
    1. A state entity may even be founf to have waived immunity based upon acceptance of federal funds from private individuals.
    1. Suits may be brought directly under a federal statute containing an explicit or implicit private cause of action implied private rights of action, see Chapter 5.2 of this MANUAL.
    2. Suits 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. 42 U.S.C. § 1983, see Chapter 5.1.A of this MANUAL.
    3. In some cases such as those involving claims of federal preemption, a suit is simply brought under the federal question jurisdiction of the federal courts.
  16. The violation of federal law must be ongoing to warrant injunctive or declaratory relief. The Court explained that "[r]emedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law."
  17. Retroactive monetary relief is not permitted under Ex parte Young. Prospective relief is available, even if it requires the state to make large expenditures.
    1. InBoard of Trustees of the University of Alabama v. Garrett, which barred recovery of damages against states under Title I of the American with Disabilities Act, the Court expressly approved use of Ex Parte Young to enforce Title I through 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.
  18. Supreme Court explained 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.’” . Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 645 (2002).
    1. While Verizon was a business case, the Supreme Court later reiterated the applicability of Ex parte Young in the context of a challenge to a consent decree in a Medicaid case. In 2004, the Court ruled that Ex parte Young suits that are resolved in a consent decree may be enforced by federal courts. 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 comply with a consent decree, it must first find an ongoing violation of federal law. Frew v. Hawkins, 540 U.S. 431, 441-42 (2004). 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.
      1. “[T]he inquiry into whether suit lies under Ex parte Young  does not include an analysis of the merits of the claim.”
  19. If the district court certifies in writing that the immunity appeal is frivolous, proceedings in the district court against all defendants, including those claiming immunity, may continue while the interlocutory appeal is pending. Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996);  Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 94 (1st Cir. 2003).
  20. Setting issues of sovereign immunity aside, if a state opens its courts to suits against the state on state law claims, it cannot assert a lack of jurisdiction to hear comparable claims against the state brought under federal law./116/ In Howlett v. Rose, the Supreme Court held that a state court cannot apply a state law sovereign immunity defense to defeat jurisdiction against a federal claim under Section 1983, because state law permitted similar claims under state law./117/ T he Court’s decision in Alden that the state cannot be sued in state court, even on federal claims, without its consent, does not undermine the Court’s holding in Howlett, because Alden  was based on state sovereign immunity, not the authority of state courts to refuse to hear federal claims./118/ 116. Howlett v. Rose, 496 U.S. 356, 367-75 (1990). 117. Howlett, 496 U.S. 356. 118. Alden, 527 U.S. at 758.
    1. 1. OVERVIEW
      1. Many federal programs, including cash assistance, medical insurance, food stamps, and housing, are implemented through grants to the states. The states are responsible for the administration of these programs and are required to operate them in compliance with federal law.
        1. Winkelman v. Parma City School District, 550 U.S. 516, 520 (2007); see Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 476 (1996).
          1. Beneficiaries may have a claim in federal court if a state violates a federal directive in the administration or denial of benefits.
          2. Congress has enacted a series of laws prohibiting discrimination based on race, ethnicity, religion, gender, disability, and age.
          3. Americans with Disabilities Act, 42 U.S.C. § 12101; Individuals with Disabilities Education Act, 20 U.S.C. § 1400; Civil Rights Act, 42 U.S.C. § 2000e; Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 Fair Labor Standards Act, 29 U.S.C. § 216(b); Family Medical Leave Act, 29 U.S.C. § 2617(a)(2).
          4. Most of these laws either contain an express provision allowing suits against states or have been interpreted to allow for such suits. , 42 U.S.C. § 2000d-7.
          5. To remedy violations of these federal laws, an aggrieved individual may seek relief from states and/or state officials.
    2. SECTION
      1. 8.1.A. Enforcing Federal Rights Against States
          1. State laws or actions violating federal law are invalid. Shaw v. Delta Air Lines,  463 U.S. 85, 96 n.14 (1983).  See Chapter 5.2.c. of this MANUAL. 
          2. CONFLICT
          3. YET - Eleventh Amendment of the Constitution provides states with immunity from private suits. U.S. Const. amend. XI.
          4. In 1974, the Supreme Court held in a case involving welfare rights that injunctive and declaratory relief against state officials does not violate the Eleventh Amendment, but that it does prohibit retroactive monetary damages. Edelman v. Jordan, 415 U.S. 651 (1974).
          5. Subsequent cases have reaffirmed the availability of injunctive relief against state officials for violations of safety net and civil rights statutes. See Rochelle Bobroff, Ex Parte Young as a Tool to Enforce Safety Net and Civil Rights Statutes, 40 Univ. of Toledo L. Rev. 819 (2009).
    3. SECTION
      1. 8.1.B Overview of the Eleventh Amendment
          1. “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.” U.S. Const. amend. XI.
          2. Bars suits in federal court against states by citizens of other countries and citizens of other states, also prohibits suits by citizens against their own state.
          3. Private parties may not sue a state or state agency by name in federal court unless Congress validly abrogates state sovereign immunity or the state waives its immunity Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984).
          4. MAY NOT SUE
          5. UNLESS
    4. SECTION
      1. 8.1.C. Abrogation of State Sovereign Immunity by Congress
        1. Congress has power to abrogate state sovereign immunity when it does so unequivocally and pursuant to a grant of constitutional authority. Kimel v. Florida Board of Regents, 528 U.S. 62, 73-74 (2000) (holding that congressional intent to abrogate state sovereign immunity is clearly expressed when a statute, by its plain terms, applies to state actors). 
          1. States may be sued in federal court in their own name for violations of relevant statutes to which the abrogation applies, and plaintiffs may recover damages from states if the underlying statute so provides.
        2. Supreme Court held that Congress had no power to abrogate immunity under the Commerce Clause and added that it lacked such power under any other Article I provision. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).  Court acknowledged, however, that Congress did have the power to abrogate Eleventh Amendment immunity of states under the legislative enabling clause of Section 5 of the Fourteenth Amendment.
          1. Court held that remedies under Section 5 had to be narrowly tailored in order to validly abrogate immunity. 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”). Erwin Chemerinsky, Court Revisits Sovereign Immunity in Discrimination Cases, 42 Trial 70, 70 (March 2006). Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) (Americans with Disabilities Act);  Kimel v. Florida Board of Regents,  528 U.S. 62 (2000) (Age Discrimination in Employment Act).
          2. In  Tennessee v. Lane, the Court introduced an “as applied” test and held that state governments may be sued for violating Title II of the Americans with Disabilities Act as it applies to claims involving the fundamental right of access to the courts. The Court held that the legislative record included ample evidence to justify the Americans with Disabilities Act's remedies, including damages. Tennessee v. Lane, 541 U.S. 509, 522-23 (2004) (stating that the infringement of basic constitutional guarantees is “subject to more searching judicial review”). Lower courts have applied Lane in other contexts as well. For example, the Fourth and Eleventh Circuits have extended Lane to cases involving access to education.See Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 490 (4th Cir. 2005);Association for Disabled Americans, Incorporated v. Florida International University,  405 F.3d 954, 959 (11th Cir. 2005).
    5. SECTION
      1. 8.1.D. Waiver of Immunity
          1. 8.1.D.1. State Legislation Waiving Immunity
          2. In evaluating state statutes that purport to waive sovereign immunity, courts often view such statutes skeptically. For example, in King v. State, the Nebraska Supreme Court pronounced that “[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.” 56. King v. State, 614 N.W.2d 341, 347 (Neb. 2000).
          3. 8.1.D.2. Federally Mandated Waiver of Immunity Under Congressional Spending Power
          4. Congress may impose conditions on states in exchange for the provision of federal funds South Dakota v. Dole, 483 U.S. 203 (1987) (upholding requirement that states raise the minimum drinking age to 21 as a condition on the receipt of federal highway funds); Fullilove v. Klutznick, 448 U.S. 448.
          5. APPLIES TO SUIITS
          6. under Title VI of the Civil Rights Act (discrimination based on race and ethnicity),
          7. the Age Discrimination in Federally Assisted Programs Act of 1975,
          8. Title IX of the Education Amendments of 1972 (gender discrimination in education),
          9. Section 504 of the Rehabilitation Act of 1974 (discrimination based on disability).
          10. Congress may require that the states waive their sovereign immunity as a condition of receiving federal funds.  Sossamon v. Texas, 131 S. Ct. 1651, 1657-58 (2011).
          11. Congress "craft[ed] an unambiguous waiver of the States Eleventh Amendment immunity" in 42 U.S.C. § 2000d-7  Lane v. Pena, 518 U.S. 187, 200 (1996).
          12. Section 2000d-7 applies to the states as a waiver of immunity arising from a state accepting federal funds
          13. 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.
          14. Section 2000d-7, 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).
          15. 8.1.D.3. Waiver of Immunity by Litigation
          16. Supreme Court unanimously held that removal of a case by a state from state court to a federal court constitutes a waiver of Eleventh Amendment immunity.  Lapides v. Board of Regents, 535 U.S. 613 (2002).
          17. Waiver by litigation 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.”
          18. The Court limited its holding, however, “to the context of state law claims, in respect to which the state has explicitly waived immunity from state-court proceedings.”
          19. Lapides 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.
          20. See also Miller v. Texas Tech University Health Sciences Center, 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.”).
    6. SECTION
      1. 8.1.E. Prospective Injunctive Relief Under Ex Parte Young
        1. In 1908, Ex parte Young established an exception to states' sovereign immunity under the Eleventh Amendment, holding that when a state official violates the federal constitution, the officer is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.”
          1. Ex parte Young permits suits for prospective and injunctive relief against a state official, usually the official in charge of the agency responsible for the violation, to enforce federal rights. Ex parte 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.
          2. 8.1.E.1. Limitations and the Continuing Availability of a Remedy
          3. 8.1.E.2. Rejection of the Assault on Ex Parte Young
          4. The court went on to hold, “We reaffirm well-established precedent holding that laws validly passed by Congress under its spending powers are supreme law of the land.”/109/ Indeed, the Spending Clause of the Constitution is just as enforceable as any other constitutional provision.
    7. SECTION
      1. 8.1.F. Interlocutory Appeals
        1. 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. Puerto Rico Aqueduct and Sewer Authority v. Metcalf and Eddy, Incorporated, 506 U.S. 139, 141 (1993);Mitchell v. Forsyth,  472 U.S. 511, 525 (1985).
          1. If an appeal is filed, proceedings against the appealing defendants come to a halt, and the district court has discretion to stay or limit proceedings against other defendants.
    8. SECTION
      1. 8.1.G. Interlocutory Appeals
        1. Congress cannot authorize suits against states in state courts for violations of federal law without the consent of the states, except when Congress acts pursuant to its Fourteenth Amendment powers. Alden v. Maine, 527 U.S. 706, 755-56 (1999)
          1. Court held that a state court need not enforce federal laws absent congressional action under the Fourteenth Amendment, the Court’s holding in Alden does not preclude a state from doing so. Accordingly, a careful examination of a state’s statutes may reveal authority to enforce federal claims against the state in state court.
    9. SECTION
      1. 8.1.H. Administrative Proceedings
        1. Supreme Court held that states enjoy sovereign immunity from federal adjudicative administrative hearings initiated and prosecuted by private parties, so that a federal agency may not adjudicate a dispute between a private party and a nonconsenting state. Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 768 n.19 (2002).
          1. This may affect federal whistle-blower statutes that provide for administrative hearings. However, the bar of sovereign immunity in that situation can be overcome if the federal agency intervenes as a party in the proceeding. See Rhode Island Department of Environmental Management v. United States, 304 F.3d 31, 55 (1st Cir. 2002). The First Circuit has also left open the possibility that Ex parte Young could be applied to administrative proceedings where state officials were named as defendants in their official capacity and the private plaintiff seeks only injunctive relief. Connecticut Department of Environmental Protection v. Occupational Safety and Health Administration, 356 F.3d 226, 234 (2d Cir. 2004).