Updated 2013 by Rochelle Bobroff
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 Beneficiaries may have a claim in federal court if a state violates a federal directive in the administration or denial of benefits.
In addition to public benefit programs, Congress has enacted a series of laws prohibiting discrimination based on race, ethnicity, religion, gender, disability, and age.2 Most of these laws either contain an express provision allowing suits against states or have been interpreted to allow for such suits.3 Federal labor laws protecting employees have also been made applicable to the states.4 As a result, states may violate federal statutes if, for example, they expel students with disabilities from state universities, fire employees who take leave to care for a family member, or refuse to assist prisoners with disabilities with access to bathroom facilities.
To remedy violations of these federal laws, an aggrieved individual may seek relief from states and/or state officials.
8.1.A. Enforcing Federal Rights Against States
Under the Supremacy Clause of the United States Constitution, state laws or actions violating federal law are invalid.5 Yet, the Eleventh Amendment of the Constitution provides states with immunity from private suits.6 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 the Constitution prohibits retroactive monetary damages.7 Subsequent cases have reaffirmed the availability of injunctive relief against state officials for violations of safety net and civil rights statutes.8
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.9 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.10 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.11
8.1.B Overview of the Eleventh Amendment
The Eleventh Amendment to the Constitution bars suits in federal court against states by citizens of other countries and other states.12 In 1890, the Supreme Court held that the Eleventh Amendment also prohibits suits by citizens against their own state.13 As a result, 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.14
State sovereign immunity also extends to state agencies.15 In determining whether an agency is entitled to Eleventh Amendment immunity, the courts consider various factors, including whether payment of a judgment resulting from the suit would come from the state treasury, the status of the agency under state law, and the agency’s degree of autonomy.16 The Eleventh Amendment does not, however, immunize local governments from private suits.17
Under Ex parte Young, private parties can sue state officials in their official capacity to enforce federal laws and regulations, but only for prospective injunctive and declaratory relief.18 Accordingly, there must be an ongoing violation of federal law to support prospective relief.19 Such relief may include notice to the plaintiff class of the availability of remedies under state law.20 No damages are recoverable in Ex parte Young suits, but prospective relief may require the incidental expenditure of state funds.21
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.22 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.”23
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.24 However, 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.25 State immunity rules apply to claims under state law.26 Additionally, the provision in 28 U.S.C. § 1367(d), which generally tolls the statute of limitations on supplemental claims dismissed in federal court, does not apply to state claims against a state or state agency dismissed on Eleventh Amendment grounds.27 Tolling does apply to counties which do not have Eleventh Amendment immunity.28
States have no sovereign immunity protection if the proceeding is initiated or prosecuted by the federal government.29 This applies even if the federal government is seeking recovery of damages on behalf of an individual, and damages in a suit by the individual would be barred by the Eleventh Amendment.30 States also lack immunity from suits brought by other states; however, unlike the federal government, a state can only sue another state to protect its own interests, not those of individual citizens.31
8.1.C. Abrogation of State Sovereign Immunity by Congress
Congress has power to abrogate state sovereign immunity when it does so unequivocally32 and pursuant to a grant of constitutional authority. If the abrogation is constitutionally valid, states may be sued in federal court in their own name for violations of relevant statutes to which the abrogation applies, and plaintiffs may recover damages from states if the underlying statute so provides. Since 1996, however, suits against states based on abrogation of immunity and the recovery of damages against states for violations of federal law have been sharply limited.33
In 1989, the Supreme Court held that Congress had the authority to abrogate immunity in the course of legislating under any of its broad Article I powers, including the Commerce Clause, copyright powers, and bankruptcy.34 Just seven years later, however, in Seminole Tribe of Florida v. Florida, the 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.35 The 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.36
Yet, the next Term, the Court limited the legislative authority of Congress under Section 5 of the Fourteenth Amendment to abrogate state immunity. The Court held that remedies under Section 5 had to be narrowly tailored in order to validly abrogate immunity.37 In reviewing the abrogation of sovereign immunity in two anti-discrimination statutes, the Court subjected the legislative record to exacting scrutiny. The Court rejected extensive evidence of discrimination by private employers and required evidence of a widespread pattern of discrimination by state employers. Finding that neither the Age Discrimination in Employment Act nor the employment provisions of the Americans with Disabilities Act had an adequate legislative record, the Court concluded that the damages remedies in those statutes could not be applied to the states.38
Nevertheless, the Court upheld the abrogation of sovereign immunity in several subsequent cases, deciding each on narrow grounds. In Nevada Department of Human Resources v. Hibbs, the Court held that Congress had authority under the Fourteenth Amendment to abrogate state immunity through the family care provisions of the Family Medical Leave Act, which is based on underlying concerns about sex discrimination.39 Gender discrimination is subject to higher scrutiny under the equal protection clause than discrimination based on age or disability, to which rational basis review applies. Applying heightened scrutiny for gender discrimination, the Court relaxed the evidentiary requirements for abrogating sovereign immunity and accepted evidence of discrimination by private actors as a basis for upholding the statute's abrogation of sovereign immunity.40 However, the Court recently held in Coleman v. Court of Appeals that Congress did not abrogate state sovereign immunity from suits for damages under the Family Medical Leave Act's self care provisions because they were not "congruent and proportional" to any identified constitutional violations.41
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.42 The Court held that the legislative record included ample evidence to justify the Americans with Disabilities Act's remedies, including damages.
In 2006, the Court unanimously held in United States v. Georgia that Congress has the power under Section 5 of the Fourteenth Amendment to abrogate state immunity in the context of suits for damages against state prisons under Title II of the Americans with Disabilities Act, at least to the extent that such suits challenge conduct claimed to violate the Fourteenth Amendment.43 The case was remanded for a determination whether any of the alleged conduct violated Title II but not the Constitution, and if so, whether Title II validly abrogated sovereign immunity for such conduct.
The Court has also permitted bankruptcy proceedings against states, finding them, at the core, to involve in rem jurisdiction.44 In Central Virginia Community College v. Katz, the Court acknowledged that statements in Seminole Tribe reflected an assumption that the holding in that case would apply to the Bankruptcy Clause.45 However, a five-member majority concluded that this assumption was erroneous and rejected the sovereign immunity defense advanced by the state agency.46 The Court explained that the states, in ratifying the Bankruptcy Clause, acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts .
Several trends have emerged in recent lower court cases addressing sovereign immunity.47 Courts have dismissed employment discrimination suits seeking damages against states in federal court under the Americans with Disabilities Act and self-care provisions of the Federal Medical Leave Act, but sovereign immunity has not been a bar to employment discrimination suits against the states under these statutes seeking injunctive relief, including reinstatement.48 In the context of disability discrimination in higher education, numerous court of appeals have held that Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity.49 Following Georgia, some prisoner suits under Title II alleging constitutional violations have been allowed to proceed against states.50 However, some district courts have held that, in the absence of a constitutional violation, Title II does not validly abrogate sovereign immunity in the prison context.51
8.1.D. Waiver of Immunity
There are three ways that states waive their immunity: (1) by state legislation explicitly waiving immunity from suit; (2) by accepting federal funds that have been provided on the condition that sovereign immunity is waived; and (3) by removing state court litigation to federal court.
8.1.D.1. State Legislation Waiving Immunity
Advocates in several states have sought state legislation waiving sovereign immunity in suits to enforce federal laws. Minnesota attempted to enact such a law in 2005, subjecting the state to suit under certain federal employment laws "in any court of competent jurisdiction."52 However, in a 1999 case, the Supreme Court suggested in dicta that the phrase "in any court of competent jurisdiction" would not be sufficient to waive state sovereign immunity.53 The Eighth Circuit, relying on that dicta, found the waiver language in the Minnesota statute insufficiently unequivocal to waive immunity in federal courts for a claim under the Americans with Disabilities Act.54 The Ninth Circuit reached the same conclusion, holding that that "in any court of competent jurisdiction" language did not waive state immunity to suit in federal court for a claim under a state civil rights law.55
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 Accordingly, advocates drafting state consent laws should explicitly specify consent to suit in federal court.57
8.1.D.2. Federally Mandated Waiver of Immunity Under Congressional Spending Power
The Supreme Court held some time ago, in South Dakota v. Dole, that Congress may impose conditions on states in exchange for the provision of federal funds.58 Citing Dole, the Court recently stated that “Congress has broad power to set the terms on which it disburses federal money to the States."59 Congress may require that the states waive their sovereign immunity as a condition of receiving federal funds.60 However, there must be clear notice to the states of the consequences of accepting the money.61
The Court has stated that Congress "craft[ed] an unambiguous waiver of the States' Eleventh Amendment immunity" in 42 U.S.C. § 2000d-7.62 This statutory provision applies to suits under Title VI of the Civil Rights Act (discrimination based on race and ethnicity), the Age Discrimination in Federally Assisted Programs Act of 1975, Title IX of the Education Amendments of 1972 (gender discrimination in education), and Section 504 of the Rehabilitation Act of 1974 (discrimination based on disability). Although expressed in terms of abrogation, Section 2000d-7 applies to the states as a waiver of immunity arising from a state accepting federal funds.63 If sovereign immunity is waived under statutes enacted as part of the spending power, a private plaintiff may sue the state or state agency as a named defendant and may recover damages to the extent that they are allowed by the underlying statute; the private plaintiff also may obtain injunctive and other relief.
Laws that waive sovereign immunity based on the acceptance of federal funds have a wide applicability. Because most state agencies receive some federal funds, it is generally not difficult to establish the state's acceptance of federal assistance.64 The Rehabilitation Act, in particular, provides that if one part of a department or agency receives federal financial assistance, the entire entity is considered to receive federal assistance and must conform to the Act’s requirements.65 Even state agencies that merely distribute federal assistance are covered by the Rehabilitation Act.66
The Second Circuit carved out a time-limited exception to the waiver under the Rehabilitation Act.67 It reasoned that states could not have foreseen the reversal in the Supreme Court's approach to the abrogation of sovereign immunity and therefore could not have knowingly agreed to waive immunity by accepting federal funds prior to the Court's recent decisions. No other circuit has adopted this approach. To the contrary, every other circuit court (except the Federal Circuit which has never considered the question) has held that states waive their sovereign immunity under the Rehabilitation Act by accepting federal funds, regardless of the time period involved.68 Even within the Second Circuit, it is well established that this reasoning ceased to be applicable after 2001. Thus, the Second Circuit's ruling should not have any lasting significance.69
In Dole, the Supreme Court suggested that in some unspecified circumstances, financial inducement might be coercive, thereby exceeding congressional power.70 In the recent decision on the constitutionality of the Affordable Care Act, National Federation of Business v. Sebelius ("NFIB"), seven justices held that Congress exceeded its power in conditioning all existing Medicaid funds on acceptance of a Medicaid expansion.71 Chief Justice Roberts wrote the plurality opinion, joined by Justices Breyer and Kagan, which stated that the expansion was a "new health care program."72 Roberts explained that States "could hardly anticipate" that Medicaid would be transformed "so dramatically," and as a result, the threat to withhold all Medicaid funding was a "gun to the head."73 Justices Scalia, Kennedy, Thomas, and Alito jointly wrote a dissenting opinion, which likewise concluded that conditioning all Medicaid funds on acceptance of the expansion exceeded Congress's power under the Spending Clause as unduly coercive.74 The Chief Justice then held that the proper remedy was to permit states to continue to access existing Medicaid funds, even if states chose not to implement the expansion.75 Justices Ginsburg and Sotomayor concurred in this result.76 The joint dissenters would have invalidated the entire statute.77
Prior to NFIB, courts of appeals uniformly rejected the argument that the Rehabilitation Act's waiver of immunity is coercive. In Jim C. v. United States, for example, the potential loss of federal funds was $250 million, 12 percent of the State’s annual education budget.78 The court described replacing these funds as “politically painful, but we cannot say that it compels Arkansas’s choice.”79 In another case, the court rejected the state's coercion argument based on the potential loss of federal funds of $557 million, comprising 60 percent of Nebraska's social services budget.80 In response to challenges brought by states to Medicaid requirements, courts of appeals rejected the argument that the threat of the loss of federal Medicaid funds is coercive, even when such funds exceed a billion dollars per year.81 The impact of NFIB on future challenges to Medicaid conditions is uncertain.82
In addition to the Rehabilitation Act, other federal statutes contain abrogation provisions and each statute should be examined to determine whether it contains language that can be construed as consent to suit by the states as a condition of accepting federal money.83 A state entity may even be found to have waived immunity based upon acceptance of federal funds from private individuals. For example, in Bennett-Nelson v. Louisiana Board of Regents, Louisiana Tech University was found to have waived sovereign immunity based on its acceptance of federal financial aid monies from students.84
8.1.D.3. Waiver of Immunity by Litigation
In Lapides v. Board of Regents, the 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.85 The Court explained that 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.”86 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.”87 Additionally, the Court overruled Ford Motor Company v. Department of the Treasury of Indiana88 where the Court refused to find waiver by litigation unless expressly authorized by state law.89 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.90 While the reach of Lapides is uncertain, several circuit courts have extended its holding to federal claims as well.91 Recently the First Circuit held that there is no waiver through litigation conduct where "a State does nothing more than zealously defend against" federal jurisdiction.92
8.1.E. Prospective Injunctive Relief Under Ex Parte Young
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.”93 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.94
Cases seeking to apply Ex parte Young may be brought in several different ways. First, suits may be brought directly under a federal statute containing an explicit or implicit private cause of action.95 Second, 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.96 Third, 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.97
8.1.E.1. Limitations and the Continuing Availability of a Remedy
In 1974, the Supreme Court held that retroactive monetary relief is not permitted under Ex parte Young.98 Prospective relief is available, even if it requires the state to make large expenditures.99 A decree requiring state officials to pay for the future costs of desegregating a de jure segregated school system fit within the prospective relief permitted by Ex parte Young.100 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."101
In the mid-1990's, however, the Supreme Court rejected claims for prospective relief under Ex Parte Young in two cases involving Indian tribes. In Seminole Tribe, the Court held that Ex Parte Young was inapplicable was inapplicable to the Indian Gaming Regulatory Act, because the statute contains a detailed, though quite limited, remedial scheme which "strongly indicates that Congress has no wish" to permit extensive injunctive relief under Ex Parte Young.102 A year later, in Idaho v. Coeur d'Alene Tribe of Idaho, the Court rejected prospective relief under Ex Parte Young on the grounds that the state's special sovereign interests in control of its lands and waters barred all forms of relief under federal law.103
Subsequently, the Court reaffirmed the continuing availability of prospective relief under Ex Parte Young. In Board 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.104
A year later in Verizon Maryland Incorporated v. Public Service Commission of Maryland, the 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.’”105 Since the prayer for relief asked that the commissioners be enjoined from enforcing an order in contravention of federal law, the test was met. The addition of a claim for declaratory relief did not impose on the state any monetary loss for past breach of its duty. The Court also rejected the argument that Ex parte Young was inapplicable because the commission’s decision was probably consistent with federal law: “[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”106 The Court concluded that "the doctrine of Ex parte Young permits Verizon’s suit to go forward against the state commissioners in their official capacities.”107
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.108 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.”109 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.110
In Virginia Office for Protection and Advocacy v. Stewart ("VOPA"), the Court upheld the validity of an Ex parte Young claim in a suit against state officials brought by an independent state agency.111 The Court held that a suit seeking an injunction to produce records properly sought prospective relief under Ex parte Young.112
However, in a dissenting opinion by Chief Justice Roberts in Douglas v. Independent Living Center, four justices suggested that Ex parte Young actions should be limited to cases in which the state is threatening an enforcement action.113 The dissent would have dismissed a Medicaid preemption claim. Justice Kennedy, who did not join the ILC dissent, has expressed the opposite interpretation of Ex parte Young. Justice Kennedy noted in his concurrence in VOPA that while Ex parte Young was a preemptive defense to an enforcement action, the Supreme Court has subsequently "expanded the Young exception far beyond its original office in order to vindicate the federal interest in assuring the supremacy of [federal] law."114
8.1.E.2. Rejection of the Assault on Ex Parte Young
Encouraged by the limitations placed on the availability of prospective injunctive relief in Seminole Tribe and Coeur d'Alene, some states mounted a wholesale attack on the ability of private parties to enforce federal laws under Ex parte Young. The assault against prospective relief in suits involving safety net and civil rights statutes has been defeated in lower courts.
Following Seminole Tribe, states argued that the remedial scheme in safety net and civil rights statutes precluded relief under Ex parte Young. In the context of Medicaid, several circuit courts have explicitly rejected this argument. The First Circuit stated: “[W]e preserve three decades of case law refusing to construe the Eleventh Amendment to prohibit suits for prospective injunctive relief involving [Medicaid].”115 The Eighth Circuit reached the same conclusion regarding the Child Welfare Act, holding that its remedial scheme was not similar to that at issue in Seminole Tribe.116 In the context of Title II of the Americans with Disabilities Act, the Ninth Circuit rejected arguments that the Eleventh Amendment prohibits prospective relief, finding that the remedial scheme of the Americans with Disabilities Act was similar to that in Verizon.117
Seizing upon Coeur d'Alene, states have also argued that special sovereign interests counsel against providing prospective relief to enforce safety net and civil rights statutes. This argument has been soundly rejected as well. In a Medicaid case, the Tenth Circuit explained that the “state’s interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young.”118 The Supreme Court of New Mexico, holding Ex parte Young applicable in state court, reached the same result, concluding that the Age Discrimination in Employment Act did not implicate special sovereignty interests akin to those found in Coeur d’Alene.119
Another challenge to Ex parte Young relief fashioned on the concurrences of Justices Scalia and Thomas in Pharmaceutical Research and Manufacturers of America v. Walsh asserted that Spending Clause statutes should not be treated as the supreme law of the land.120 States argued that Spending Clause statutes are akin to contracts between the states and federal government and therefore unenforceable by individuals. Numerous courts of appeals have rejected this argument as contrary to binding Supreme Court precedent. The Fourth Circuit explained that “the Supreme Court has treated the Medicaid Act as ‘supreme’ law and has invalidated conflicting State law under the Supremacy Clause.”121 The Sixth Circuit stated, “The fact that these provisions have the binding force of law means that Medicaid and similar federal grant programs are not subject merely to doctrines of contract interpretation.” 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.”122 Indeed, the Spending Clause of the Constitution is just as enforceable as any other constitutional provision.123
The Supreme Court recently rejected a state's claim that a Medicaid preemption claim would interfere with the state's traditional role as an authority in tort law. The Court stated: "A statute that singles out Medicaid beneficiaries . . . cannot avoid compliance with the federal [Medicaid] provision merely by relying upon a connection to an area of traditional state regulation."124
8.1.F. Interlocutory Appeals
One major factor to consider in naming defendants who may assert sovereign immunity is that in federal court a state or state official claiming immunity has a right to an interlocutory appeal if the district court rejects the immunity defense.125 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.126 If, however, 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.127 Several circuit courts that have addressed sovereign immunity in an interlocutory appeal have refused to broaden their review to assess whether violations of federal laws may be challenged under Section 1983.128
8.1.G. Suits in State Court
In Alden v. Maine, the Supreme Court held that, under the structure of the federal Constitution and historic principles of sovereign immunity, 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.129 Although the 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.
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.130 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.131 The 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.132
Almost all states have laws against discrimination, and many allow such laws to be enforced in suits against the state or state agencies. The Seventh Circuit applied Howlett to an employment discrimination claim under the ADA, in which the state court held that the claim could not be pursued in federal court.133 The court of appeals explained that because Illinois had not implemented a rule of sovereign immunity but rather had enacted state law permitting claims in state court to redress employment discrimination based on disability, applying Howlett, the state court could not exclude comparable claims under the Americans with Disabilities Act134 Nevertheless, the Supreme Court has indicated that a state may choose to waive sovereign immunity in state court but not in federal court for a given claim.135
Finally, the Full Faith and Credit clause does not require a state to apply the immunity law of a second state when the second state is sued in the courts of the first.136 The state may, however, do so as a matter of comity.137
8.1.H. Administrative Proceedings
In the context of a dispute involving maritime law, the 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.138 This may affect federal whistle-blower statutes that provide for administrative hearings.139 However, the bar of sovereign immunity in that situation can be overcome if the federal agency intervenes as a party in the proceeding.140 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.141
Updated 2013 by Rochelle Bobroff
- 1. Frew v. Hawkins, 540 U.S. 431, 433 (2004). See Dalton v. Little Rock Family Planning Services, 516 U.S. 474, 476 (1996).
- 2. See, e.g., 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.
- 3. See, e.g., 42 U.S.C. § 2000d-7.
- 4. See, e.g., Fair Labor Standards Act, 29 U.S.C. § 216(b); Family Medical Leave Act, 29 U.S.C. § 2617(a)(2).
- 5. U.S. Const. art. VI, cl.2. See Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983). See Chapter 5.2.c. of this MANUAL.
- 6. U.S. Const. amend. XI.
- 7. Edelman v. Jordan, 415 U.S. 651 (1974).
- 8. 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).
- 9. Alden v. Maine, 527 U.S. 706, 728-29 (1999).
- 10. 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).
- 11. 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).
- 12. “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.
- 13. Hans v. Louisiana, 134 U.S. 1 (1890).
- 14. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984).
- 15. Id.
- 16. 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).
- 17. 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).
- 18. Ex parte Young, 209 U.S. 123 (1908); see Virginia Office for Protection and Advocacy v. Stewart, 131 U.S. 1632 (2011) (Virginia Office for Protection and Advocacy's status as an independent state agency, which sued for records of another state entity, is irrelevant to the Young analysis). See Bobroff, Ex Parte Young, supra note 8.
- 19. Green v. Mansour, 474 U.S. 64 (1985).
- 20. Edelman v. Jordan, 415 U.S. 651 (1974).
- 21. Milliken v. Bradley, 433 U.S. 267 (1977). The Sixth Circuit has held that the Eleventh Amendment does not permit a prospective injunction that amounts to a direct monetary award. See Ernst v. Rising, 427 F.3d 351, 371 (6th Cir. 2005) (“[A] request that plaintiffs [district court judges] receive a higher pension benefit in the future not only compels greater state contributions in the future but also will compel other transfers of state funds to account for the lack of adequate contributions in the past.”).
- 22. 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.
- 23. 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 (March-April 2005).
- 24. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 121 (1984).
- 25. 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).
- 26. See, e.g., Theobald v. Board of County Commissioners, 332 F.3d 414 (6th Cir. 2003).
- 27. Raygor, 534 U.S. at 546.
- 28. Jinks v. Richland County, 538 U.S. 456 (2003).
- 29. Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 768 n.19 (2002); United States v. Mississippi, 380 U.S. 128, 140-41 (1965).
- 30. United States v. Mississippi Department of Public Safety, 321 F.3d 495, 499 (5th Cir. 2003).
- 31. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); Quern v. Jordan, 440 U.S. 332, 342 (1979).
- 32. 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).
- 33. See Bobroff, Scorched Earth, supra note 10; Tobin, supra note 10.
- 34. Pennsylvania v. Union Gas Company, 491 U.S. 1 (1989).
- 35. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
- 36. Id. at 59.
- 37. 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”). See Erwin Chemerinsky, Court Revisits Sovereign Immunity in Discrimination Cases, 42 Trial 70, 70 (March 2006).
- 38. 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).
- 39. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).
- 40. Id. The Seventh Circuit held that Congress had authority under the Fourteenth Amendment to authorize Title VII claims alleging intentional discrimination in cases involving race and sex. Nanda v. Board of Trustees of the University of Illinois, 303 F.3d 817 (7th Cir. 2002), cert. denied, 539 U.S. 902 (2003); see also Downing v. Board of Trustees of the University of Alabama, 321 F.3d 1017 (11th Cir. 2003). The Second Circuit further held that Congress had Fourteenth Amendment authority to abrogate immunity in the Americans with Disabilities Act, but only to the extent that there was evidence in the case of discriminatory animus or ill will due to disability. Garcia v. State University of New York Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001).
- 41. Coleman v. Court of Appeals, 132 S. Ct. 1327, 1335 (2012).
- 42. 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).
- 43. United States v. Georgia, 546 U.S. 151 (2006). See also Alaska v. Equal Employment Opportunity Commission, 564 F.3d 1062 (9th Cir. 2009) (en banc) (holding that gender and racial discrimination, harassment and retaliation claims by employees of the Alaska governor’s office were not barred by sovereign immunity because each claim alleged an actual constitutional violation).
- 44. U.S. Const. Art. I., § 8, cl. 4. See Tennessee Student Assistance Corporation v. Hood, 541 U.S. 440, 451 (2004) (avoiding sovereign immunity question and holding that a bankruptcy proceeding initiated by a debtor against a state agency to determine the dischargeability of a student loan is an in rem action, not an action against the State for purposes of the Eleventh Amendment). See generally California v. Deep Sea Research, Incorporated, 523 U.S. 491 (1998) (holding the Eleventh Amendment does not bar federal jurisdiction over in rem admiralty actions when the State is not in possession of the property).
- 45. Central Virginia Community College v. Katz, 546 U.S. 356 (2006).
- 46. Id. (holding that the States, in ratifying the Bankruptcy Clause, acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts).
- 47. See Bobroff, Scorched Earth, supra note 10.
- 48. See, e.g., Diaz v. Michigan Department of Corrections, 703 F.3d 956, 964 (8th Cir. 2013); Nelson v. University of Texas at Dallas, 535 F.3d 318 (5th Cir. 2008).
- 49. See, e.g., Bowers v. National Collegiate Athletic Association, 475 F.3d 524 (3d Cir. 2007); Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 487 (4th Cir. 2005).
- 50. Degrafinreid v. Ricks, 417 F.Supp.2d 403, 410-13 (S.D.N.Y. 2006).
- 51. Chase v. Baskerville, 508 F. Supp. 2d 492 (E.D. Va. 2007); Hale v. Mississippi, 2007 WL 3357562, 2007 U.S. Dist. LEXIS 83518 (S.D. Miss. Nov. 9, 2007).
- 52. Minn. Stat. § 1.05 (2005).
- 53. College Savings Bank v. Florida Prepaid Postsecondary Education Board, 527 U.S. 666, 676 (1999).
- 54. Faibisch v. University of Minnesota, 304 F.3d 797, 800 (8th Cir. 2002).
- 55. Stanley v. Trustees of California State University, 433 F.3d 1129, 1134 (9th Cir. 2006).
- 56. King v. State, 614 N.W.2d 341, 347 (Neb. 2000).
- 57. Compare N.C. Gen. Stat. § 143-300.35 (2005) (waiving sovereign immunity to plaintiffs’ suits in state and federal courts under the Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act, Family Medical Leave Act).
- 58. 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.
- 59. Arlington Central School District Board of Education v. Murphy, 548 U.S. 291, 295-96 (2006).
- 60. Sossamon v. Texas, 131 S. Ct. 1651, 1657-58 (2011).
- 61. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47 (1985) (holding the Rehabilitation Act did not validly abrogate state sovereign immunity because it failed to manifest “a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity”).
- 62. Lane v. Pena, 518 U.S. 187, 200 (1996).
- 63. Id. at 198 (1996).
- 64. See Bobroff & Tobin, supra note 11, at 24-25.
- 65. Rehabilitation Act, 29 U.S.C.A. § 794(b); see, e.g., Schroeder v. City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991). See also the federal implementing regulations for 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).
- 66. Rehabilitation Act, 29 U.S.C. § 794(b)(1)(B).
- 67. Garcia v. State University of New York Health Sciences Center of Brooklyn, 280 F.3d 98, 114 (2d Cir. 2001).
- 68. See Constantine, 411 F.3d 474, 491–96 (4th Cir. 2005); Miller v. Texas Tech University Sciences Center, 421 F.3d 342, 349 (5th Cir. 2005) (en banc); Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161 (D.C. Cir. 2004); Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 127–29 (1st Cir. 2003); Brockman v. Wyoming Department of Family Services, 342 F.3d 1159, 1167–68 (10th Cir. 2003); Koslow v. Pennsylvania, 302 F.3d 161, 167–76 (3d Cir. 2002); Lovell v. Chandler, 303 F.3d 1039, 1050–52 (9th Cir. 2002); Nihiser v. Ohio Environmental Protection Agency, 269 F.3d 626 (6th Cir. 2001); Garrett v. University of Alabama at Birmingham Board of Trustees, 276 F.3d 1227, 1228 (11th Cir. 2001) (en banc); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000); Jim C. v. United States, 235 F.3d 1079, 1081–82 (8th Cir. 2000) (en banc).
- 69. See Bobroff & Tobin, supra note 11, at 22.
- 70. South Dakota v. Dole, 483 U.S. 203, 211 (1987).
- 71. National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).
- 72. Id. at 2606.
- 73. Id. at 2604, 2606.
- 74. Id. at 2666 (Justices Scalia, Kennedy, Thomas, and Alito, jointly dissenting).
- 75. Id. at 2607-08 (plurality opinion by Chief Justice Roberts).
- 76. Id. 2630, 2642 (Ginsburg, J., concurring).
- 77. Id. at 2667 (joint dissent).
- 78. Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) (en banc), cert denied, 533 U.S. 949 (2001). See also North Carolina v. Califano, 445 F. Supp. 532 (D.N.C. 1977), aff’d without opinion, 435 U.S. 962 (1978) (loss of funding, amounting to million in 1977 dollars, for some forty-five public health programs, not coercive).
- 79. Jim C., 235 F.3d at 1082.
- 80. Doe v. Nebraska, 345 F.3d 593, 599 (8th Cir. 2003). Accord Nieves-Márquez, 353 F.3d at 129; Koslow, 302 F.3d at 174; Constantine, 411 F.3d at 494.
- 81. West Virginia v. U.S. Department of Health and Human Services, 289 F.3d 281, 292 (4th Cir. 2002). See also California v. United States, 104 F.3d 1086 (9th Cir.), cert. denied, 522 U.S. 806 (1997) (rejecting contention that Medicaid requirement to provide emergency care to immigrants is coercive since state health system would collapse without federal Medicaid funds).
- 82. See Samuel Bagenstos, The Anti-Leveraging Principle and the Spending Clause after NFIB, 101 Georgetown Law Journal 861 (2013); Nicole Huberfeld, et. al, Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases, 93 Boston University Law Review 1 (2013).
- 83. There is a strong presumption against waiver. The Supreme Court recently held that the Religious Land Use and Institutionalized Persons Act of 2000, which authorizes "appropriate relief against a government" is not the unequivocal expression of state consent needed to constitute a waiver of state sovereign immunity. Sossamon v. Texas, 131 S. Ct. 1651 (2011).
- 84. Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 452–53 (5th Cir. 2005).
- 85. Lapides v. Board of Regents, 535 U.S. 613 (2002).
- 86. Id. at 620.
- 87. Id. at 617.
- 88. Ford Motor Co. v. Department of the Treasury of Indiana, 323 U.S. 459 (1945).
- 89. Lapides, 535 U.S. at 623.
- 90. 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.”).
- 91. See e.g., Lombardo v. Pennsylvania Department of Public Welfare, 540 F.3d 190, 196-200 (3rd Cir. 2008) (state waived immunity from suit based on federal claims in federal court by removing the case, but did not waive immunity from liability by doing so); Ku v. Tennessee, 322 F.3d 431 (6th Cir. 2003) (holding “that [the state’s] appearing without objection and defending on the merits in a [§ 1983 action] over which the district court otherwise has original jurisdiction is a form of voluntary invocation of the federal court's jurisdiction that is sufficient to waive a State's defense of Eleventh Amendment immunity.”); Estes v. Wyoming Department of Transportation, 302 F.3d 1200 (10th Cir. 2003) (holding that the Wyoming Department of Transportation's removal of the case to federal court effectively waived sovereign immunity in response to plaintiff’s Title I ADA claim).
- 92. Consejo de Salud de la Comunidad de la Playa de Ponce, Incorporated v. Gonzalez-Feliciano, 695 F.3d 83, 105 (1st Cir. 2012), certiorari denied, Atlantic Medical Center, Incorporated v. Feliciano, 134 S. Ct. 54 (2013).
- 93. Ex parte Young, 209 U.S. 123, 123 (1908). See Bobroff, Ex Parte Young, supra note 8.
- 94. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 121 (1984). See Lawson v. Shelby County, 211 F.3d 331, 335 (6th Cir. 2000).
- 95. For a discussion of implied private rights of action, see Chapter 5.2 of this MANUAL.
- 96. For a discussion of 42 U.S.C. § 1983, see Chapter 5.1.A of this MANUAL.
- 97. For a discussion of preemption claims, see Chapter 5.2 of this MANUAL.
- 98. Edelman v. Jordan, 415 U.S. 651 (1974) (holding the Eleventh Amendment barred the retroactive payment of benefits wrongfully withheld).
- 99. Id. at 667-68.
- 100. Milliken v. Bradley, 433 U.S. 267, 289-90 (1977).
- 101. Green v. Mansour, 474 U.S. 64, 68, 73 (1985).
- 102. Seminole Tribe, 517 U.S. at 73-76.
- 103. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 287 (1997).
- 104. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (emphasis added).
- 105. Verizon Maryland, Incorporated v. Public Service Commission, 535 U.S. 635, 645 (2002).
- 106. Id. at 646.
- 107. Id. at 648.
- 108. 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.
- 109. Id. at 437.
- 110. Id. at 438-40.
- 111. Virginia Office for Protection and Advocacy v. Stewart, 131 S. Ct. 1632 (2011).
- 112. Id. at 1639
- 113. Douglas v. Independent Living Center of Southern California, Incorporated, 132 S. Ct. 1204, 1213 (2012) (Roberts, C.J., dissenting).
- 114. Virginia Office for Protection and Advocacy, 131 S. Ct. at 1642 (Kennedy, J., concurring).
- 115. Rosie D. v. Swift, 310 F.3d 230, 237 (1st Cir. 2002). Accord Westside Mothers v. Haveman, 289 F.3d 852, 862 (6th Cir. 2002); Antrican v. Odom, 290 F.3d 178, 190 (4th Cir. 2002). See also Reynolds v. Giuliani, 118 F. Supp. 2d 352, 382 (S.D.N.Y. 2000) (holding that remedial scheme for both Food Stamps and Medicaid does not preclude relief under Ex parte Young).
- 116. Missouri Child Care Association v. Cross, 294 F.3d 1034, 1038-39 (8th Cir. 2002). Accord Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002).
- 117. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188 (9th Cir. 2003).
- 118. Lewis v. New Mexico Department of Health, 261 F.3d 970, 978 (10th Cir. 2001). Accord Antrican, 290 F.3d at 190 (Medicaid); Oklahoma Chapter of the American Academy of Pediatrics v. Fogarty, 205 F. Supp. 2d 1265 (N.D. Okla. 2002) (Medicaid); Office of the Child Advocate v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004) (child welfare system). For an interesting case holding that a state protection and advocacy organization may use Ex parte Young to seek records from a state government agency, see Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, 603 F.3d 365, 370-74 (7th Cir. 2010) (en banc).
- 119. Gill v. Public Employees Retirement Board, 90 P.3d 491, 500, 501 (N.M. 2004).
- 120. See Pharmaceutical Research and Manufacturers v. Walsh, 538 U.S. 644, 675 (Scalia, J., concurring); id. at 683 (Thomas, J., concurring).
- 121. Antrican v. Odom, 290 F.3d 178, 188 (4th Cir. 2002).
- 122. Westside Mothers v. Haveman, 289 F.3d 852, 857-62 (6th Cir. 2002). Accord Missouri Child Care Association v. Cross, 294 F.3d 1034, 1041 (8th Cir. 2002); Frazar v. Gilbert, 300 F.3d 530, 550 (5th Cir. 2002), rev’d on other grounds, Frew v. Hawkins, 540 U.S. 431 (2004); Arrington v. Fuller, 237 F. Supp. 2d 1307 (M.D. Ala. 2002).
- 123. Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345, 392-93 (2008).
- 124. Wos v. E.M.A., 133 S. Ct. 1391, 1400 (2013).
- 125. 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).
- 126. See, e.g., Root v. Liberty Emergency Physicians, Incorporated, 68 F. Supp. 2d 1086 (W.D. Mo. 1999) (staying all proceedings against all parties pending the immunity appeal of one party).
- 127. Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996); Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 94 (1st Cir. 2003).
- 128. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 416-17 (5th Cir. 2004); Rosie D. v. Swift, 310 F.3d 230, 233-34 (1st Cir. 2002); Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002).
- 129. Alden v. Maine, 527 U.S. 706, 755-56 (1999) (finding the state had not consented to suit for overtime pay because state law expressly excluded state employees from overtime pay). The Iowa Supreme Court reached an opposite conclusion in Anthony v. State, 632 N.W.2d 897 (Iowa 2001) finding that the Iowa Wage Payment Collection Law contains express consent to sue in Iowa courts for purposes of recovering any compensation owed to plaintiff and that overtime pay due under the Fair Labor Standards Act qualifies as such compensation; accord Williamson v. Department of Human Resources, 572 S.E.2d 678 (Ga. Ct. App. 2002).
- 130. Howlett v. Rose, 496 U.S. 356, 367-75 (1990).
- 131. Howlett, 496 U.S. 356.
- 132. Alden, 527 U.S. at 758.
- 133. Erickson v. Board of Governors, 207 F.3d 945, 952 (7th Cir. 2000).
- 134. Id.
- 135. College Savings Bank v. Florida Prepaid Postsecondary Education Board, 527 U.S. 666, 676 (1999).
- 136. Franchise Tax Board v. Hyatt, 538 U.S. 488, 496-98 (2003). Because the parties did not raise any issue of sovereign immunity in the U.S. Supreme Court, the Court did not consider the issue.
- 137. Id. at 496-99.
- 138. Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 768 n.19 (2002).
- 139. See Rhode Island Department of Environmental Management v. United States, 304 F.3d 31, 55 (1st Cir. 2002).
- 140. Id. at 53-54. See also Connecticut Department of Environmental Protection v. Occupational Safety and Health Administration, 356 F.3d 226, 234 (2d Cir. 2004).
- 141. Id. at 52.