Chapter § 6.05 State Sovereign Immunity

• Jurisdiction: United States
• Publication year: 2020

§ 6.05 State Sovereign Immunity

Although this chapter concentrates on statutes that waive the United States’ immunity to lawsuits, states are also immune from suit. State sovereign immunity encompasses two different types. First, the Eleventh Amendment states that “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.”¹⁹⁸ As interpreted by the Supreme Court, “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.”¹⁹⁹ Second, even before the ratification of the Constitution, States enjoyed a broader sovereign immunity that applies against all private suits, whether brought in a state or federal court.²⁰⁰ Neither type of protection is absolute. States may elect to waive either species of immunity in federal or state court.²⁰¹ Also, in limited circumstances, Congress can abrogate a state’s sovereign immunity under its enforcement power in section 5 of the Fourteenth Amendment.²⁰² The requirements for abrogation and waiver are rigorous. Before Congress can waive a State’s sovereign immunity under the Fourteenth Amendment, it “must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.”²⁰³ Generally, courts will deem a State to have waived its immunity “only where stated ‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.’ ”²⁰⁴ Likewise, in deciding whether Congress has properly abrogated the states’ Eleventh Amendment immunity, courts have required “an unequivocal expression of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several States.’ ”²⁰⁵

A suit against a state agency or department is considered a lawsuit against the state under the Eleventh Amendment and is, thus, barred.²⁰⁶ This constitutional ban also applies to suits against “state officials when ‘the state is the real, substantial party in interest.’ ”²⁰⁷ For state officials, the general rule is that “relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.”²⁰⁸ A suit brought against a state official in her official capacity generally isn’t considered “a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.”²⁰⁹ The Supreme Court created an exception to this general rule in Ex parte Young.²¹⁰ Under this exception, the Eleventh Amendment is not a bar to suits for prospective relief against a state officer acting in her official capacity.²¹¹ Thus, a court is permitted to award prospective injunctive or declaratory relief against a state official, but not retrospective relief such as monetary damages for past wrongs.²¹² The Ex parte Young exception “ensures that state officials do not employ the Eleventh Amendment as a means of avoiding compliance with federal law.”²¹³

The Eleventh Amendment, however, does not bar claims against state officials in their personal capacities. The distinction between official and individual capacity suits depends on “the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.”²¹⁴ As articulated in New Orleans Towing Association v. Foster, “the performance of official duties creates two potential liabilities, individual-capacity liability for the person and official-capacity liability” for the state.²¹⁵ Suits brought against a state official in her official capacity “generally represent only another way of pleading an action against an entity of which an officer is an agent.”²¹⁶ On the other hand, personal capacity suits “seek to impose individual liability upon a government officer for actions taken under color of state law.”²¹⁷ An official sued in her official capacity has the same immunity as the state (i.e., sovereign immunity), while an official sued in her personal capacity, although deprived of sovereign immunity, may assert personal immunity defenses such as objectively reasonable reliance on existing law or qualified immunity.²¹⁸

Nevada Department of Human Resources v. Hibbs²¹⁹ serves as a good example of a case in which the Supreme Court determined that Congress properly abrogated a state’s sovereign immunity pursuant to its power under section 5 of the Fourteenth Amendment. In Hibbs, the court considered whether a male state employee could recover money damages against Nevada for the state’s alleged discriminatory noncompliance with the family-care leave provision of the Family and Medical Leave Act of 1993 (“FMLA”).²²⁰ The Court held that Congress made its...