Section 1983, statutes, and sovereign immunity.

• Author: Daum, Nick

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc).

This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), (1) a plaintiff should be able to use 42 U.S.C. [section] 1983 (2) to seek damages from state officials for ADA violations. (3) Using the leading case on the topic, Alsbrook v. City of Maumelle, (4) the Comment will show that when the current Supreme Court closed one door through its federalism cases, it opened another through [section] 1983.

It might appear that the Supreme Court's recent sovereign immunity jurisprudence has all but eliminated Congress's power to subject states to private damage actions for violations of federal statutes. In the line of cases beginning with Seminole Tribe v. Florida, (5) and including Alden v. Maine, (6) the Court has consistently (if controversially) found that Congress has no power under Article I of the Constitution to subject states to private damage actions, in either federal or state courts, for violating federal statutes. Although Congress retains power to subject states to damage suits by individuals through its power to enforce the Fourteenth Amendment, (7) that power has been reined in substantially in recent years by the line of cases beginning with City of Boerne v. Flores (8) and including Board of Trustees of the University of Alabama v. Garrett. (9) The result is a number of important federal statutes, including the ADA (10) (the subject of Garrett), in which congressional schemes for private damage suits have been held invalid on Eleventh Amendment grounds. (11) These statutes are theoretically still legitimate legislation under the Commerce Clause, and states are still obliged to obey them--and yet an injured party is unable to seek monetary relief if they are violated. Countless commentators have noticed, and lamented, this breach of the rule-of-law principle. (12)

Nonetheless, damage suits for violations of federal law that are in essence suits against states happen all the time. They are suits under 42 U.S.C. [section] 1983. Section 1983 has been recognized since 1961 (13) as providing a way to sue state officials for damages stemming from violations of federal law. The [section] 1983 damages suit proceeds under the legal fiction that one is suing a state official in his individual capacity for a violation of [section] 1983. Section 1983, in turn, creates no substantive rights; rather, it provides a remedy against officials who act under color of state law to violate a right guaranteed by federal law. The paradigm case for a [section] 1983 violation has been a violation of the federal Constitution, and many commentators refer to [section] 1983 cases as "constitutional torts." (14) Ever since Maine v. Thiboutot, (15) however, [section] 1983 has been read also to permit suits against state officials acting in their individual capacities for violations of federal statutes. One can sue a state official for violating a federal statute, just as one can sue the official for violating a duty under the Constitution.

The key point, for Eleventh Amendment purposes, is the legal fiction that [section] 1983 suits against individual officers are not suits against a state. They thus do not, in theory, raise Eleventh Amendment issues at all. The state, although it serves as the "deep pocket," is liable only indirectly, usually through an indemnification contract or policy in which the state implicitly or explicitly agrees to reimburse monetary judgments against its officers. In this way, the courts have permitted what amounts to a modified regime of tort liability for state governments that violate federal law.

If all of this is true--if the ADA still applies to the states, and if one can plead statutory violations against state officials in their individual capacities for violations of federal statutes--then why don't plaintiffs' lawyers simply sue individual state officials under [section] 1983 for violating their obligations under federal law? Instead of bringing a suit under the ADA directly against a state, why not sue a state official under [section] 1983 for his violation of the ADA? Such a method would limit the power of Seminole Tribe and render cases like Garrett almost irrelevant in practice.

Alsbrook v. City of Maumelle (16) demonstrates why commentators (17) and plaintiffs' lawyers have not embraced the [section] 1983 approach. In Alsbrook, the plaintiff, an aspiring policeman, sued an Arkansas state agency for violating Title II of the ADA. He also sued the agency's commissioners in their individual capacities for violating [section] 1983 by failing to comply with their obligations under Title II of the ADA. The agency had refused to waive a vision requirement for local police hiring. Therefore, Alsbrook claimed, it had denied him equal access to employment opportunities because of a correctable disability. The Eighth Circuit saw the case as an opportunity to explain why damage suits under the ADA are impermissible on sovereign immunity grounds. First, the court (anticipating Garrett) found that the ADA did not abrogate state sovereign immunity under the Fourteenth Amendment, and that, therefore, there could be no private damage action under the ADA directly against a state. More importantly, however, the Alsbrook...