2.11 Eleventh Amendment and Miscellaneous Other Restraints on Exercise of Jurisdiction

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

2.11 ELEVENTH AMENDMENT AND MISCELLANEOUS OTHER RESTRAINTS ON EXERCISE OF JURISDICTION

2.1101 Eleventh Amendment.

A. Terms of the Eleventh Amendment.

The Eleventh Amendment to the United States Constitution provides that: "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." The Supreme Court has construed this amendment as barring suits against a state by its own citizens, even though it does not expressly say so. ⁷⁵¹ This amendment does not bar suits against a state by the United States or by another state. States retain their sovereign immunity from private suits brought in courts of other states. ⁷⁵²

Sovereign immunity is jurisdictional in nature. ⁷⁵³

B. Real Party in Interest Must Be the State.

In order for a subdivision or instrumentality of a state to be protected by the Eleventh Amendment it has to be shown that the monetary award being sought will have to be satisfied from the state's treasury, ⁷⁵⁴ or that the board, agency, or instrumentality at issue is the alter ego of the state. ⁷⁵⁵ The court may grant prospective injunctive and declaratory relief against state officers. ⁷⁵⁶

The jurisdictional shield of the Eleventh Amendment insulates a state from a writ of garnishment under Fed. R. Civ. P. 69(a). ⁷⁵⁷ A federal proceeding that seeks to attach property of a state in order to satisfy a debt, whether styled as a garnishment action of an analogous common law writ, violates the Eleventh Amendment. ⁷⁵⁸

C. State Consent.

States may waive their immunity by voluntarily submitting to suit ⁷⁵⁹ or by specifically consenting to suit in the federal courts. ⁷⁶⁰ The consent must be clear and specific and cannot be implied from consent to a suit in the state's own courts. ⁷⁶¹ The state may also constructively waive its Eleventh Amendment immunity by participation in a federal program. ⁷⁶²

Generally, the Eleventh Amendment bars suits against states and state agencies for money damages in federal court. ⁷⁶³ "A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense." ⁷⁶⁴

For a case in which the Supreme Court held that Congress had not unambiguously waived the states' sovereign immunity, see FAA v. Cooper, ⁷⁶⁵ finding that, in enacting the Privacy Act of 1974, ⁷⁶⁶ Congress did not authorize damages suits against the FAA for emotional distress caused by disclosure of the plaintiff's HIV infection to the agency that revoked his pilot's license, and he was subsequently indicted for making false statements in applications to that agency for renewal of that license.

In order for a state's sovereign immunity to be abrogated, Congress must "unequivocally" express the intent to do so, pursuant to a valid grant of constitutional authority. ⁷⁶⁷ Where Congress had not unequivocally expressed this intent, a case against a state will ordinarily be dismissed on Eleventh Amendment grounds. ⁷⁶⁸

Under the doctrine of Ex parte Young, ⁷⁶⁹ however, Eleventh Amendment immunity does not extend to a state official sued in his or her official capacity when the plaintiff seeks only prospective, injunctive relief. ⁷⁷⁰

One decision has expressly declined to expand the doctrine of Ex parte Young to lift the bar of sovereign immunity in federal court when the plaintiff is a state agency. ⁷⁷¹ In the absence of a specific grant of Congressional authority, a state agency may not sue state officials in their official capacity because such claims are barred by the doctrine of sovereign immunity. ⁷⁷²

Sovereign immunity "clearly prevents federal courts from ordering state officials to conform their conduct to state law." ⁷⁷³

Where a party alleges that the Commonwealth has waived its sovereign immunity, that party bears the burden of proof of a waiver. ⁷⁷⁴ Under the doctrine of Ex parte Young, the immunity granted by the Eleventh Amendment to state officials sued in an official capacity does not apply when a plaintiff seeks only prospective, injunctive relief, and this does not change if the prospective relief could have financial consequences. ⁷⁷⁵

Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state. ⁷⁷⁶

D. Congress May Authorize Suits.

Congress possesses the power, under section 5 of the Fourteenth Amendment, to enforce, by appropriate legislation, the guarantees of section 1 of that Amendment, including the power to authorize suits against the states in federal court and the collection of damages and attorney fees from state treasuries. ⁷⁷⁷ Congress lacks the power, however, under the Interstate Commerce Clause, to abrogate the states' Eleventh Amendment immunity. ⁷⁷⁸

The Fourth Circuit has examined the interplay between concepts of state sovereign immunity and federal sovereign immunity when title VII claims are asserted against the federal government as an employer. In Bullock v. Napolitano, ⁷⁷⁹ the court noted that title VII creates an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination claims. ⁷⁸⁰ Sovereign immunity is not only a bar to liability but also a bar to the courts in which suits against the United States can be filed and to the remedies claimed. Any statutory waiver of sovereign immunity can condition or limit the waiver, and it is clear that the United States, as a sovereign, is completely immune from suit in state courts, except as it has expressly consented to be sued, and the terms of its consent to be sued in any court strictly define and delimit that state court's jurisdiction to entertain the suit. ⁷⁸¹ The court rejected the plaintiff's argument that, when it waived sovereign immunity for the United States in title VII, Congress also waived immunity from actions in any court where those actions might be brought. The court found that the United States had waived its sovereign immunity only as to federal courts, and not as to state courts, and, in any event, any such waiver would have to be express, and there was no such express waiver of the right not to be sued in state courts in the case of title VII. ⁷⁸²

E. Qualified Immunity.

Qualified immunity shields government officials from civil liability "when, based on 'clearly established law,' they 'could reasonably believe that their actions were lawful.'" ⁷⁸³ Qualified immunity protects law enforcement officers from liability for "bad guesses in gray areas," and ensures that they will be held liable only for violating bright-line rules. ⁷⁸⁴ Suits to impose "individual and personal liability" on a state official are not barred by the Eleventh Amendment. ⁷⁸⁵

F. United States as a Defendant.

Suits against the United States are barred by the doctrine of sovereign immunity, not by the Eleventh...