Federal Courts Outline Part 2

Class 5: i. ii. Fitzpatrick, The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 Va. L. Rev. 839 (2012) Epps & Sitaraman, Supreme Court Reform and American Democracy, 130 Yale Law Journal Forum 821 (2021) (Brightspace) Class 6: i. ii. Casebook pp. 326-341 Casebook pp. 345-361 (1) United States v. Mendoza-Lopez (1987, p. 386)  had been deported and was now being prosecuted for the crime of re-entry after having been deported. Question was whether  could defend by challenging the validity of the underlying deportation order. SCT found that Congress had intended to preclude collateral attack on deportation orders. Nonetheless, SCT held that ’s opportunity to challenge order was required. Article III review of administrative decision is required where decision has collateral criminal consequences = SCT held that “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” Where the deportation proceeding eliminated the right to obtain judicial review, due process requires that the person be allowed to make a collateral challenge to the use of the proceeding as an element of a subsequent criminal offense. (2) Battaglia v. General Motors (1948, p. 374) FLSA required that employers pay overtime for work over 40 hours per week. Statute provided no definition of what constituted “work.” SCT held that miners had to be compensated for their travel time underground. Instead of clarifying the definition of “work,” Congress reacted by passing the Portal-to-Portal Act, which provided that employers would not be held liable for failure to compensate workers for overtime. So it basically stripped the courts of all remedial power. Workers raised due process and takings claims in DCT. SCT rejected claims on merits, but treated the question as w/in its jurisdiction. (a) Court always has jurisdiction to determine whether it has jurisdiction = If the right in question is a constitutional right, then the federal courts have the power to review the case to determine whether there is jurisdiction. Here, SCT had to determine whether there was a viable takings claim. If so, the jurisdiction-stripping provision was invalid and SCT had to have jurisdiction to hear the constitutional claim. (b) Court can look to merits of case to answer jurisdiction question = If the court needs to look at the substance of the case to determine whether or not it has jurisdiction, that’s fine. Seems to contradict Lockerty. Class 7: i. Casebook pp. 361-394 II. CONGRESSIONAL AUTHORITY TO ALLOCATE JUDICIAL POWER TO NONARTICLE III TRIBUNALS A. General issue = Another way in which Congress can control the jurisdiction of the federal judiciary is to put adjudicative responsibility in non-Article III administrative agencies, rather than eliminate Article III jurisdiction entirely. The questions are: 1. Definition of judicial power = What all falls into Article III’s “judicial power”? 2. When judicial power can be allocated elsewhere = Assuming we know what constitutes the judicial power, under what circumstances is it appropriate to put the power in administrative forums? 3. Validity and desirability of the administrative state = We have to question the validity of the administrative state and ask whether it is more desirable solution to docket overload than other possible solutions:    More judges Apportionment of cases to state courts Cut access to judicial forums B. Cases 1. Crowell v. Benson (1932, p. 387) Workers compensations claims were heard by deputy commissioners under Workers Compensation Act. Employer defended on ground that  was not employee at the time that he was injured and that, regardless of ’s status, the Act placing workers comp cases before an administrative agency violated Article III. SCT upheld the administrative scheme. Commissioner could make findings of fact, and findings of law were subject to Article III review. “Private” rights distinguished from “public rights” = Whether a case can be allocated to a non-Article III tribunal depends on the nature of the right involved. a. Private rights = Where the dispute is between two citizens, as here, Congress can delegate adjudication to an administrative agency, but there MUST be Article III review. The following standards should apply: (1) De novo review of law = SCT held that law should be reviewed de novo, but this is now limited by Chevron (where there are equally good interpretations of the law, the administrative agency’s interpretation rules). (2) “Supported by evidence” review of ordinary facts = SCT should review the factual determinations to ensure that they are supported by the evidence. (3) De novo review of constitutional facts = SCT created a different standard of review for constitutional facts, defined as those upon which the enforcement of a constitutional right depends. In this case, SCT thus had the power to review de novo the factual question of whether  was employed by  at the time he was injured, since his recovery under the statute turned on that fact. Heightened review for constitutional facts has been maintained in most subsequent cases. (4) De novo review of jurisdictional facts = SCT also created different standard of review for jurisdictional facts, defined as those upon which the agency’s jurisdiction depended. The distinction b/w ordinary facts and jurisdictional facts has NOT been retained by subsequent decisions. b. Public rights = Where the dispute is b/w the citizen and the government, it does NOT have to be adjudicated in an Article III court. When Congress creates a right, it has the power to prescribe the manner in which it will be adjudicated. Greater power includes the lesser. 2. United States v. Raddatz (1980, p. 439) Questioned the validity of the Magistrates Act.  was indicted for violation of federal firearm statute and made motion to suppress certain evidence. Judge referred motion to magistrate judge, who heard evidence, proposed findings of fact, and recommended that motion be denied. Court upheld Act under DP clause. a. Rejecting de novo review of constitutional facts = SCT rejected Crowell’s suggestion that Article III requires a trial de novo on constitutional facts in suppression motion. Held that firearm statute required de novo decision by judge, but not de novo hearing of evidence. b. Sufficient district court control = SCT noted that DCT had plenary discretion to decide to use a magistrate, to accept or reject the magistrate’s recommendation, and to hear the evidence de novo. The entire process took place under DCT control, so OK. 3. Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982, p. 399) Question was whether the jurisdiction granted to bankruptcy judges in the Bankruptcy Act of 1978 violated Article III. Under old system, bankruptcy cases were heard by referees, whose decisions were appealable to DCTs. The courts had “summary jurisdiction”—jurisdiction only over cases involving property in the possession of the court. With consent of DCT, the courts could have jurisdiction over some “plenary” matters. Under the new system:    Judges, not referees, serving 14 year terms. Jurisdiction over all cases related to Title 11, whether state or federal claim. Panels of three bankruptcy judges hear appeals. If no panel, appellate review by DCT then CTA. a. Brennan’s decision (plurality) = The plurality invalidates the Bankruptcy Act. There are two parts to the decision, which ultimately boils down to an “essential attributes” test: (1) Begin with a reading of Article III = Article III §1 states that the judicial power shall vest in courts governed by judges who have life tenure + salary protection. An impartial decision maker in an Article III forum is necessary for:   Checks & balances Protection of individual rights. (2) Exceptions to Article III = Article III, however, cannot be read so literally. Throughout history, all of the adjudicative power has not been assigned to Article III courts alone. Indeed, the Madisonian Compromise left a good deal of power to state courts. Brennan focuses on 3 exceptions to Article III: (a) Territorial courts = In geographical areas where states had not yet developed, Article IV granted Congress the right to govern with nonArticle III courts. The justification was basically efficiency. The framers knew that many of the territories would become states, and didn’t want to create new Article III courts that would be running around once the states developed. (b) Courts martial = Congress and the Executive historically have held the power over the military. There’s a strong argument that Congress needs the flexibility to provide the appropriate adjudication in an independent and isolated environment. (c) Public rights = While common law private rights must be adjudicated (or at least reviewed) in Article III courts, the same is not true for public rights, created by the government. See Crowell. (i) Government must be party = For the right at issue in a suit to qualify as a public one, the United States must be a party to the suit. (FN 23). Party status is a necessary, but not sufficient condition. Fact that right may have been created by government entity and part of complex regulatory scheme does not matter. (ii) Need for narrow definition of public rights = The government-as-aparty requirement ignores many rights that are really public—rights that exist by virtue of a regulatory scheme are private rights in furtherance of a public goal. But a broader definition would subsume almost every sort of right. There would be no stopping point. (iii) Bifurcation of private rights = Relying on Crowell, Brennan goes on to divide private rights into two categories: “While Crowell endorsed the proposition that Congress possesses broad discretion to assign fact-finding functions to an adjunct created to aid in the adjudication of congressionally created private rights, Crowell does not support the proposition that Congress possesses the same decree of discretion in assigning the judicial power to adjuncts engaged in the adjudication of rights not created by Congress.” So there are three types of rights, each meriting a different degree of Article III protection:  Public rights  No Article III review required.  Congressionally created private rights  Agency adjudication OK as long as there is Article III review.  Common law private rights  Must have Article III forum. (iv) Problem with distinction between “public” and “private” rights = One would think that Article III protections would be most important when one party is the government:  Individual rights = Due process supposedly requires that a person have a meaningful opportunity to be heard before she is deprived or liberty or property. See Goldberg v. Kelly. Without an Article III forum, there is a much greater risk that individual rights will not be protected. But, then again, Goldberg was eviscerated by Arnick v. Kennedy (clarifying that welfare recipients have to take the bitter with the sweet).  Structural protections = Can we really trust Congress and the Executive to watch themselves? Not if we expect Monica to keep her dresses clean. (3) “Essential attributes” test = Because it is unlikely that rights will qualify as public ones and thus fall into one of the historic exceptions to Article III, an administrative scheme will satisfy Article III only when the essential attributes of the judicial power are preserved in an Article III forum. Look at the following: (a) Scope of jurisdiction = What is the scope of the agency’s jurisdiction? Narrow jurisdiction will pass the test. But it’s not really clear why general jurisdiction wouldn’t be just fine. (b) Enforceability of orders = Can the agency enforce its own orders, or does it depend on an Article III forum for enforcement? (c) Power to issue remedies = Does the agency have the power to issue coercive remedies (contempt, injunctions)? (d) Availability and standard of appellate review = What is the availability of appellate review? (i) Standards = It is assumed that there will be de novo review of law, subject to Chevron. The fight is over the review of the facts. De novo or substantial evidence standard of review? (ii) Article III appellate review is not enough by itself = In FN 39, Brennan suggests that the “essential attributes” must be met at ALL stages of adjudication, rather than only on appeal, where all the facts have been determined and the only issues left are those of law (this is why the standard of factual review is so important). b. White’s balancing test = White dissented, rejecting the “essential attributes” test. He argued that the Court should look at Article III values, and balance them against (1) the rights at stake, (2) Congress’s intent in creating the administrative agency. This eventually becomes the law in CFTC v. Schor. c. Brennan test applied to facts = In applying his two-part test to the facts, Brennan invalidated the Bankruptcy Act. (1) Article III exceptions inapplicable = None of the exceptions to Article III apply. Many of he rights at issue were common law private rights (e.g., breach of contract), and thus deserved the strictest Article III protection. (2) Essential attributes not preserved = Brennan distinguished the bankruptcy scheme from that in Crowell, and argued that the Act vested all of the essential attributes of the judicial power in the bankruptcy court:  Court had broad jurisdiction, hearing all cases related to Title 11. Court could exercise “all jurisdiction,” not just fact-finding. Court could exercise all enforcement power of district court with permission.  Facts were reviewed under deferential “clearly erroneous” standard.  Court could issue final judgments, not dependent on district court for enforcement. ADD STERN v. MARSHALL   Class 8: i. Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511 (2020) (Brightspace) Hessick, Federalism Limits on non-Article III Adjudication, 46 Pepperdine L. Rev. 725 (2019) (Brightspace) ii. 4. SUITS AGAINST THE GOVERNMENT Class 9: i. ii. iii. Casebook pp. 877-882 Casebook pp. 895-904 Casebook pp. 905-922 STATE SOVEREIGNTY AND THE 11TH AMENDMENT A. Introduction 1. General question = When does state sovereign immunity insulate states from suit, and when are the states properly subject to Article III power? a. Eleventh Amendment = “The judicial power of the United states shall not be construed to extend to any suit in law or equity, commenced against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. b. Article III = Text permits suits “between a state and citizens of another state” and “between a state and foreign citizens.” 2. General answer = The 11th amendment prohibits suits in federal courts against state governments in law, equity, or admiralty, by a state’s own citizens, by citizens of another state, or by citizens of foreign countries. But there are exceptions:      Citizens can sue state officers. State or US can sue another state in federal court. 11th amendment does not extend to local government. If a state sues an individual in the criminal context, he can appeal. State can consent to suit.  Congress can abrogate state immunity to suit under 11th amendment when exercising its power under § 5 of the 14th amendment. 3. Rejecting a literal reading of 11th amendment a. Undermines essential function of federal courts = Literally read, the 11th amendment bars even jurisdiction over the states even in federal question cases. If this is the case, courts’ role in interpreting and enforcing federal norms is undermined. b. Contrary to Madisonian compromise = Literally read, the 11th amendment does not distinguish b/w original and appellate jurisdiction. If the 11th amendment barred SCT review of state court decisions where the state is , this would be at odds with the structure of Article III and the Madisonian compromise. c. Contrary to accepted notion of state consent to suit = If the 11th amendment is read as a jurisdictional rule, then it is not waivable by the parties. So the state would not be able to consent to federal jurisdiction. 4. Rejecting reading based on party status Atascadero State Hospital v. Scanlon (1985, p. 1052) Brennan articulated a revisionist view of the meaning of the 11th amendment: a. Distinguishing sovereign immunity from 11th amendment jurisdictional bar = First, Brennan distinguished sovereign immunity from the jurisdictional bar to suit in federal court erected by the 11th amendment. 11th amendment had nothing to do w/ sovereign immunity (e.g., in suits in state court). It was designed only to regulate the scope of federal judicial power. b. Distinguishing b/w party-based jurisdiction and subject matter jurisdiction = Brennan next distinguished b/w jurisdiction based on subject matter and jurisdiction dependent upon diversity. 11th amendment barred federal jurisdiction in suits based on party status, but not those based on subject matter (federal question or admiralty). BUT this argument is not entirely persuasive—there was no federal question jurisdiction at time 11th was passed, even though it’s in Constitution and Osborne wasn’t far away. B. Origins and Interpretation of 11th Amendment 1. Chisholm v. Georgia (1793, p. 1047) Attempt by SC citizen to recover money owed by state of GA. SC citizen had supplied materials to GA during Revolutionary War. Although GA legislature appropriated the funds, they wouldn’t pay up. Citizen died, executor of his estate sued. SCT upheld jurisdiction in 4-to-1 decision. a. Article III explicitly authorizes suits against state by non-citizens = Majority concluded that unmistakable language of Article III authorized suits against state by citizens of another state. And 2 of these judges were delegates to Constitutional convention, the 2 others presided over state ratification, and 1 was one of the authors of the Federalist Papers! b. Justice Iredell’s dissent = Justice Iredell argued that the suits against the government were not permitted at English common law. The general language of Article III was therefore insufficient to authorize suit against the state w/o its consent. c. Congress passed 11th Amendment in response = Everyone was so horrified by the majority’s decision that the 11th amendment was passed 3 weeks later. Historical consensus is that states were so concerned b/c they feared suits against them (like the one in Chisholm) to collect unpaid war debts. 2. Hans v. Louisiana (1890, p. 1041) LA citizen sues LA to recover amount of interest which had accrued on bonds. Hans argued that amendment to state constitution barring payment of interest was an unconstitutional impairment of K. a. Suit against state by its own citizens prohibited = SCT held that 11th amendment bars suits against the state, whether brought by the state’s own citizens or by citizens of another state. It would be anomalous to allow a state’s own citizens to sue the state when no other citizens can. b. Different readings of Hans (1) Limiting subject matter jurisdiction = One theory is that sovereign immunity creates a constitutional restriction on SMJ, by precluding federal courts from hearing any suits against state governments. The fundamental principle of sovereign immunity limits the grant of judicial authority in Article III. (2) Reinstates common law immunity = Another theory is that the 11th amendment reinstates the common law immunity from suit enjoyed by the states prior to the adoption of Article III and prior to Chisholm. Under this view, a state can waive its immunity and consent to suit. Furthermore, Congress should have the ability to abrogate immunity (as a common law rule) under this view. C. Suits Against Officers versus Suits Against States 1. Party of Record Rule a. Osborne v. Bank of United States (1824, p. 1049) Meanie tax collector case. SCT allows Bank to sue the state tax collector. (1) Party of record rule = In all cases where jurisdiction depends on the party, it is the party named in the record that matters. 11th amendment precludes suits against a state only when the state is actually named as  in the litigation. (2) Officer personally responsible for wrong = SCT was saying that Bank was suing the state officer under a state cause of action, and that the officer was personally responsible for the wrong. Similar to principle of sovereign immunity derived from English common law. The King could do no wrong, but any of his officials could. b. Elliot v. Jumel (1883, p. 1063) LA bondholders wanted state officials to honor contractual obligations to collect a property tax and devote its proceeds to paying state bonds. They sued state officials under Osborne. SCT said jurisdiction was barred by 11th amendment. Officer cannot be party of record where not personally responsible for wrong = SCT said that the bondholders could not really sue the state officials b/c they were not personally liable on Ks. In Osborne, the Bank was asking the official to do something that he could do—give back the money that you took from our Bank. The state officials in this case had no authority to go out and levy the tax themselves. So suit was really against the state. c. Virginia Coupon Cases (1995, p. 1064) VA statute repudiated prior legislation authorizing the payment of state taxes w/ interest coupons on state bonds. When citizens insisted on paying w/ coupons, collectors seized their property for the payment of taxes. (1) Preexisting cause of action required = SCT held that citizens could sue state collectors b/c they were personally liable for their actions under state trespass laws. (2) Sovereign immunity no defense = SCT held that the official’s sovereign immunity could not serve as a defense, b/c the state could not authorize the official to engage in unconstitutional conduct. The official therefore is stripped of his official characteristics and commits a personal violation of the plaintiff’s rights for which he is personally liable. 2. Suits for Injunctive Relief a. In re Ayers (1887, p. 1064) In response to the Virginia Coupon Cases, VA passed legislation ordering state officials to bring suit to recover taxes from taxpayers who had used the coupons as payment. In such actions, coupons were to be considered prima facie counterfeit. T had burden of proving their genuineness, but was barred from introducing expert testimony and to prevail was required to produce the bond. T sues officers. SCT holds that 11th amendment is bar to jurisdiction. (1) No cause of action against officer = SCT held that Ts could not bring an action against the officers b/c they were not personally responsible for the wrong under state law—there was no tort for malicious prosecution at the time. The Virginia Coupon Cases were distinguished on the grounds that the officers there were violating the property rights of s and were personally responsible for their actions under state trespass laws. (2) Recharacterize suit against officer as suit against state = SCT said that, where the state is not nominally a party, but the defendants are its officers and agents through whom alone it can act in doing and refusing to do the things that constitute a breach of contract, the suit is in substance, though not in form, a suit against the state. This screws up the party of record rule. b. Ex Parte Young (1908, p. 1058)  was shareholder of RR. State began to regulate rates, punishing violation of rate caps as criminal offenses.  believes rates are confiscatory and violated the 5th and 14th amendments.  brings action to enjoin attorney general from bringing criminal action against RR. (1) No jurisdiction under Ayers = As in Ayers, there was no tort for malicious prosecution at the time, so the state officers could not be held personally liable for filing a criminal action against persons who violated the rates. No jurisdiction. (2) But 11th Amendment does not bar suits against state officers to enjoin violations of federal law = Despite Ayers, SCT found that there was jurisdiction. SCT held that 11th amendment cannot bar suits against state officers to enjoin violations of federal law. State officers have no authority to violate the Constitution. Their illegal acts are ultra vires, or outside the scope of their authority. (3) Two different notions of state action = The problem w/ the somewhat fictional distinction b/w the state and its officers is that, if officers are stripped of the state’s authority, where is the state action for purpose of the 14th amendment? And if there is state action, doesn’t 11th amendment sovereign immunity kick in? (a) State action for 14th amendment purposes = There is state action for 14th amendment purpose b/c the official is acting as an officer of the state, rather than in his individual capacity. (b) No state action for 11th amendment purposes = But there is no state action to give rise to 11th amendment immunity b/c the state law pursuant to which the officer is acting is unconstitutional. (4) Suit against officer will arise under federal common law = The source of SCT jurisdiction in these cases will be federal common law. The suits could not arise under the 5th or 14th amendments, or they would be against the state. So the Court implies a federally-created cause of action under the 5th and 14th amendments. 3. Suits for Monetary Relief a. Edelman v. Jordan (1974, p. 1066) s sued IL Commissioner of Public Welfare for failure to comply w/ federal standards for processing welfare applications. s sought 2 types of injunctions: one requiring future state compliance w/ guidelines, the other requiring the state to give back-payments of all the funds improperly withheld. (1) Does 11th Amendment bar jurisdiction? (a) No jurisdiction under Ayers = No state c/a requiring officers to make payments, so no jurisdiction. (b) Jurisdiction under Young = Claims are against state officials. Officials are acting pursuant to state law, so 14th amendment applies. Court will imply a remedy to redress the 14th amendment violation. There is no 11th amendment bar to jurisdiction b/c the official is stripped of his sovereign immunity when he commits an unconstitutional act. (2) Prospective relief permitted = SCT held that 11th amendment does not bar the order compelling state compliance in the future, even though compliance will cost the state money. (3) Retroactive relief not permitted = SCT refused to allow injunction granting payment of previously owed benefits. Court characterized this relief as “damages.” SCT said that 11th amendment bars such relief even though the officer, and not the state, is named as party b/c the money obviously would be paid from the state treasury and not from the officer’s own pocket. (a) Federalism rationale = SCT acknowledges that both prospective and retroactive relief have fiscal implications. But retroactive relief is more intrusive on state sovereignty. With prospective relief, the states can plan for the future and budget accordingly. (b) Problems with bar on retroactive relief (i) Hard to draw line = As the cases below demonstrate, it’s hard to draw a clear line b/c prospective and retrospective remedies. (ii) Gives states license to violate federal law = If states never have to pay “damages” for their unconstitutional actions, then the most that they ever have to pay is the cost of prospective compliance. So they just drag on the litigation forever, knowing that there will be no redress for the period in which violations occur. b. Milliken v. Bradley (1977, p. 1073) This was the decision that pretty much ended desegregation. SCT held that remedies could not cross district boundaries. BUT court ordered provision of remedial education for pupils, in-service training for teachers and administrators, and hiring of more counselors. (1) Prospective compliance exception applies = SCT upheld plan under Edelman, despite fact that it would be rather costly and that money would come out of state treasury, rather than out of officials’ pockets. SCT said “the educational components are plainly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long-maintained in Detroit.” (2) Compensatory purpose okay = SCT also stated: “That the programs are also “compensatory” in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system.” c. Hutto v. Finney (1978, p. 1074) DCT found that Arkansas penal system constituted cruel and unusual punishment and issued various injunctive orders over period of years. After concluding that  officials had acted in bad faith, he ordered them to pay $20,000 out of Dept. of Correction funds for ’s attorney fees. (1) Attorneys fees characterized as ancillary relief = SCT held that fee award did not violate 11th amendment. The power to impose a fine is properly treated as ancillary to the federal court’s power to impose relief. Court held that it served the same purpose as a remedial fine imposed for civil contempt. (2) Expands definition of “ancillary” relief = In Edelman, the Court seemed to be approving remedies that had an ancillary effect on the state treasury, rather than approving all ancillary orders to pay money. d. Quern v. Jordan (1979, p. 1075) After SCT decided Edelman, DCT ordered IL to send every member of ’s class a notice that they were denied money owed to them and informing them of the state administrative procedures available to them for collecting the funds. Notices were ancillary to prospective relief = SCT held that the notices were ancillary to prospective relief already ordered by the court. It did not matter that the notices would have the effect of encouraging claims (and possibly lots of them) for retroactive benefits b/c the availability of such payments would rest entirely w/ the state and its agencies, not with the federal court. e. Green v. Mansour (1985, p. 1075) sued DSS alleging underpayment of AFDC benefits in violation of federal law. While suit was pending in DCT, Congress modified program and state came into compliance w/ federal law. s had requested declaratory judgment that s past conduct violated federal law and for Quern notice relief. (1) Notice relief barred where not ancillary to injunctive relief = SCT said that notice relief was barred b/c it was not ancillary to any other prospective injunctive relief. Unlike situation in Quern, there was no claimed continuing violation of federal law, and therefore no occasion to issue an injunction. There was no existing claim to which Quern relief could be appended. (2) Arguments that relief would have been proper = Although the action was technically moot once the agency came into compliance, courts have made exceptions and taken jurisdiction where:   Harm is subject to repetition.  voluntarily ceases wrongful behavior. 4. Suits for Violations of State Law Pennhurst State School and Hospital v. Halderman (1981/ 84, p. 1077) Resident of PA state institution for mentally retarded filed federal class action against institution and various state and county officials, alleging that conditions of institution violated both state and federal law. DCT found for s and ordered Pennhurst to close facilities as soon as possible and to provide suitable living arrangements for residents. CTA affirmed, but rested decision solely on federal law. On initial review, SCT held that federal law relied upon by CTA and DCT did not create any substantive c/a. Remanded for determination of whether other state or federal law supported relief. On remand, CTA based relief on state law. SCT reversed. a. 11th amendment bars relief against state officials for state law violations = SCT held that 11th amendment barred relief based on state law. b. Federalism rationale = Court concluded that federal courts can give relief against state officers on federal law grounds b/c of the importance of securing compliance w/ federal law. B/c the federal system has no such need to ensure enforcement of state law, there is no reason to create an exception to the 11th amendment and allow suits against state officers on pendent state law claims in federal court. c. Bad decision = This decision sucks for a number of reasons: (1) Ex Parte Young should apply = The principle set out in Young—that officers who act illegally are stripped of state authority and may be sued in federal court— should apply no less forcefully when the violation is of state as opposed to federal law. (a) Ultra vires exception = Powell does say that 11th amendment bar will be lifted where the state officer acts ultra vires. But he says that the exception can’t apply here, b/c the state statutes commanded “purely discretionary” duties. The officers made mistakes, big deal. Conduct cannot be ultra vires unless the underlying statute articulates the specific duties of the officer. (b) Too narrow definition of ultra vires = If Powell weren’t being completely idiotic, he would have admitted that there’s always a limit to the exercise of discretion. Abusing the mentally retarded is not discretionary. (2) Historical reliance on state cause of action = Historically, we allowed suits against state officers where there existed a state cause of action to vindicate a state law wrong. The whole reason that we needed to imply a remedy in Young was b/c a state cause of action didn’t exist. So Pennhurst could have been decided on the basis of precedent w/o ever reaching Young. BUT there needs to be a “not insubstantial” federal claim in order for the court to have subject matter jurisdiction. 5. Section Summary Analytical framework for 11th amendment problem: a. Apply Hans interpretation of 11th amendment = 11th amendment seems to bar suits against the state and codifies common law notions of sovereign immunity.    But  can litigate against state by naming official as party of record (Osborne). No 11th amendment bar if officer would be personally liable under state common law (Ayers). State official cannot defend by saying that he acted under authority of unconstitutional law (Virgina Coupon Cases). b. Apply Young where no state cause of action = Where there is no state cause of action under which the officer could be personally liable, imply a Bivens-like remedy under Young. This fills the gap.   There will be state action for purposes of invoking 14th amendment b/c state officer is acting in official, rather than personal capacity. No state action for purpose of 11th amendment sovereign immunity b/c state law upon which officer is relying is unconstitutional. c. Apply Edelman to limit reach of Young = Look to Edelman to see whether court has power to issue remedy sought under Young.    Prospective relief is permitted. Retroactive relief is prohibited. Where money is coming out of the state treasury, the action is really against the state, not the officer, so the 11th amendment will bar the suit. d. Apply Pennhurst to further limit Young   Suits against state officers for violation of state law cannot be heard in federal court, even if state claim is pendent to federal claim. Suit may be permitted where officer acted ultra vires. But if his duties under state statute were discretionary, then there is no jurisdiction. D. Waiver and Abrogation 1. Waiver a. Very clear statement required = State can consent to suit by a very clear statement that it intends to do so. According to some cases, a general waiver will not suffice. State must explicitly say that it is waiving its sovereign immunity under the 11th amendment through:   Statutory provision State constitutional provision. b. Constructive waiver = Can the federal government condition the receipt of federal funds upon consent to suit in federal courts? (1) Parden v. Terminal Railway (1964, p. 1099) Court held that AL had constructively consented to federal court negligence action under FELA, brought by an employee of a state-owned railway. FELA provided that Congress intended to subject the state to suit under the statute. And the states surrendered a portion of their sovereign immunity when they granted Congress the power to regulate commerce. (2) Welch v. Texas Dep’t of Highways (1987, p. 1100)  was an employee of TX agency that operated a ferry, and sought damages under Jones Act (which provided for personal injury action under FELA) for injuries suffered on the ferry dock. After finding that the question of express waiver had not been presented for review, Court declined to find abrogation as well. The requisite “unmistakable statutory language” was lacking. Constructive waiver is no longer recognized. 2. Abrogation a. Power to abrogate depends upon theory of 11th amendment = Whether Congress has power to abrogate the states’ 11th amendment immunity depends upon our theory of the 11th amendment. There are three: 1. Diversity theory = 11th amendment limits only the diversity jurisdiction of federal courts, its subject matter jurisdiction over suits involving states remains intact. To the extent that sovereign immunity exists, it exists only as a matter of common law. We can enforce sovereign immunity, but only until Congress speaks to the contrary. See Atascadero. 2. Common law theory = 11th amendment reinstated the broad state sovereign immunity that existed at common law. Congress can override the immunity, like it can any other common law rule. Hans says more than this. 3. Jurisdictional theory = 11th amendment is a jurisdictional bar to suits against the state. Hans constitutionalized sovereign immunity. Congress cannot abrogate it. b. Abrogation only pursuant to § 5 of 14th Amendment 1. Fitzpatrick v. Bitzer (1976, p. 1100) Title VII action alleging that CT retirement program discriminated against male employees. SCT held that 11th amendment did not bar an award of retroactive retirement benefits and attorney’s fees as allowed by Title VII. Section 5 altered shift in federal-state balance = 11th amendment and state sovereignty were limited by the enforcement provisions of the 14th amendment. Congress is expressly granted authority to enforce “by appropriate legislation” the substantive provisions of the 14th amendment, which themselves embody significant limitations on state authority. “When Congress acts pursuant to §5, not only is it exercising legislative authority that is plenary w/in the terms of the constitutional grant, it is exercising that authority under one section of a constitutional amendment whose other sections by their own terms embody limitations on state authority.” 2. Seminole Tribe of Florida v. Florida (1996, Supp. p. 62) Indian Gaming Regulatory Act provided that Indian tribes could conduct gaming activities only in conformance w/ valid compact b/w tribe and state. IGRA imposed on states a duty to negotiate in good faith w/ Indian tribe toward formation of compact, and authorized tribe to bring suit in federal court against State in order to compel performance of that duty. Despite clear congressional intent to abrogate, SCT says 11th amendment is bar to suit. a. Majority reiterates jurisdictional theory of Hans = Hans recognized a broad background principle of sovereign immunity. When states violate the law, they simply cannot be held liable in federal courts. Only exception = When Congress acts pursuant to § 5 of 14th amendment. (1) Justified by precedent = Rehnquist says that the majority’s reading of the 11th amendment is justified by stare decisis, that the trend of decisions since Hans confirms the view that state sovereign immunity underlies the constitution. (2) Souter’s dissent = Souter points out that Rehnquist takes cases where sovereign immunity was assumed and elevates them to clear statements of immunity by the Court. The question was technically an open one. b. Availability of § 1983 action = Where Congress creates a complex remedial scheme to enforce a statute, it replaces § 1983. So s could not use § 1983 to enforce the statute and, unless the statute gave s a cause of action against the officer, the Court was not willing to imply one under Young. c. Young action may still be available = If the state is violating rights pursuant to some program other than the 14th amendment, there still may be a Young action against the state official. (1) Remedial scheme will displace Young = SCT said that action was not available here b/c IGRA set up its own enforcement scheme. B/c a complex regulatory scheme was in place, SCT said that 11th amendment bar to jurisdiction over the state official could not be lifted. BUT the majority seems to misread Young, b/c it does not simply lift 11th amendment immunity. It says that there is NO immunity b/c state officials are violating the law and the state cannot authorize them to do this. (2) Court unwilling to imply right of action = SCT also focused on fact that IGRA provided right of action against the state, but not the state official, and it was unwilling to imply one. Seemed to ignore that implying an action against the official is what Young was all about. A refusal to imply a remedy under Young could lead to several problems. (a) Older statutes = Most older statutes (passed b/f 1996) do not create private rights of action against state officials. (b) No suit against state in its own name available = Problem is enhanced when a suit against the actual state is impossible:     Where the suit can’t be characterized as a suit against a state official (e.g., action to quiet title). Where state official violates state law (Pennhurst) Where state official’s duties are discretionary (Pennhurst) Where  asks for damages (Edelman) Class 10: i. Casebook pp. 939-981