State immunity waivers for suits by the United States.

• Author: Caminker, Evan H.

INTRODUCTION

The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida(1) and Alden v. Maine,(2) the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that "the background principle of state sovereign immunity embodied in the Eleventh Amendment"(3) protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is also rooted in "fundamental postulates implicit in the constitutional design,"(4) and as such it protects states from unconsented suits in their own state courts as well.

In both cases, the Court reaffirmed some previously articulated limitations on and exceptions to this principle of :sovereign immunity.(5) These exceptions include "waivers in the constitutional plan" -- situations in which states consented to certain kinds of suits on a wholesale basis when they joined the Union. One such waiver encompasses suits against a state brought by the United States.(6) Since the Court has severely curtailed congressional authority to abrogate state sovereign immunity(7) and has made specific consent to suit more difficult to prove,(8) the ultimate scope of state sovereign immunity turns in significant part on the scope of this "plan waiver" for United States suits. While private victims of state violations of federal law may still frequently protect themselves from further injury by seeking prospective relief in federal or state court,(9) recovery of compensation or monetary punishment for prior injuries will now largely be relegated to suits brought by the United States. It therefore is particularly important now to consider the potential breadth of this plan waiver.

Since the Court's initial recognition of this United States-as-plaintiff waiver (hereafter sometimes denoted US/p) in 1892,(10) it has had little occasion to expound the waiver's justifications or scope.(11) Cases implicating the waiver thus far have involved easy applications of the underlying principle, meaning suits brought in the name of the United States that purport to vindicate national sovereign or proprietary interests and are initiated and directed by federal officials in the executive branch. Given a relative lack of guidance, lower courts facing somewhat atypical forms of litigation have struggled with discerning the proper contours of the US/p waiver. In particular, courts have struggled with and ultimately split on the question whether a qui tam action(12) under the False Claims Act,(13) in which a self-selected private individual purports to sue a state in the name of and on behalf of the United States, qualifies as a suit by the United States for purposes of the immunity waiver.(14)

The Supreme Court is now poised to address this issue in Vermont Agency of Natural Resources v. United States ex tel. Stevens,(15) and thus to explore the contours of the undertheorized US/p immunity waiver. The Court hinted in Alden that the waiver might exclude suits brought on behalf of the United States by private plaintiffs rather than by public officials. This ultimate conclusion, however, rests in tension with the Court's professed commitment, throughout its immunity jurisprudence generally and its waiver jurisprudence specifically, to an originalist methodology; one that focuses on the nature of the legal interest asserted rather than on the structural form of the litigation. This methodology suggests that the Court should ascertain merely whether a particular suit is brought on behalf of the United States to vindicate its sovereign or proprietary interests, and leave it to Congress to select an appropriate, constitutionally acceptable form of litigation through which to assert such interests.(16)

Part I of this Article briefly describes the principle of state sovereign immunity. Part II presents the concept of qui tam litigation and outlines the particular structure of the False Claims Act's enforcement provisions. Part III explores the doctrine of "waivers in the constitutional plan" with respect to litigation by the United States. Here I develop the argument that the central determinant of the waiver's applicability to a given suit is whether the United States is a real party in interest to a dispute with a state. If so, the waiver should trump any erstwhile state sovereign immunity whatever the structural form of the litigation on the United States' behalf, as long as that structural form is otherwise within the power of Congress to employ. Because False Claims Act litigation asserts the United States' own sovereign and proprietary interests, qui tam enforcement of the Act against states is not properly subject to a sovereign immunity defense.

1. THE BACKGROUND PRINCIPLE OF STATE SOVEREIGN IMMUNITY

   The textual and historical hook for the constitutional principle of state sovereign immunity is the Eleventh Amendment.(17) A majority of the Court has long held, however, that this Amendment was intended merely to confirm the Framers' original understanding of this principle in the wake of the Court's erroneous rejection of a sovereign immunity defense in Chisholm v. Georgia.(18) Because "[t]he Eleventh Amendment confirmed rather than established sovereign immunity as a constitutional principle; it follows that the scope of the States' immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design."(19) Thus, the Court has long

   "understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." That presupposition, first observed over a century ago in Hans v Louisiana, has two parts: first, that each State is a sovereign entity in our federal system; and second, that "[I]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent."(20) Last Term, the Supreme Court made clear that its long-standing reference to states' Eleventh Amendment immunity is "something of a misnomer."(21) In Alden, the Court held that the states' immunity from suit is a "fundamental aspect of the sovereignty which the States enjoyed before ratification of the Constitution,"(22) and an aspect that still "inheres in the system of federalism established by the Constitution."(23) As such, states can invoke this immunity defense in their own courts as well as in federal courts. And in neither court may Congress abrogate the states' erstwhile immunity through legislation exercising any of its Article I powers.(24)

   The immunity principle does not encompass suits against a local governmental entity that does not qualify as an "arm of the State";(25) nor certain actions against individual state officers for injunctive or declaratory relief;(26) nor suits for monetary damages against a state official in her individual capacity "so long as the relief is sought not from the state treasury but from the officer personally."(27) One might roughly capture these exclusions by stating that the principle extends to suits in which the state is a "real ... party in interest."(28)

   A state may also waive its immunity by specifically consenting to be sued in state or federal court or both. A state can consent to suit on a case-by-case basis, or it can permit itself to be sued for an entire class of cases. Any variety of consent must be clearly expressed.(29)

   In addition, the Supreme Court has long held that the states waived certain aspects of their erstwhile immunity when they joined the Federal Union, either originally or later on "equal footing" with the original states.(30) Suits brought against a state by the United States ("US/p suits") or a sister state ("state/p suits") are two such waivers. Other categories include certain types of federal constitutional claims brought by individuals, suits brought pursuant to federal statutes properly designed to enforce individuals' Fourteenth Amendment rights, and Supreme Court appellate jurisdiction over all federal claims brought by individuals.(31)

   This Article concerns the plan waiver for suits brought against a state by the United States. As the Court has repeatedly reaffirmed, "nothing in [the Eleventh Amendment] or any other provision of the Constitution prevents or has ever been seriously supposed to prevent a State's being sued by the United States."(32) This plan waiver has typically been applied by the Court in what might be called the "exemplar" case, meaning a suit commenced and litigated by a public official in the name of the United States, based on an injury to a cognizable interest of the United States in its sovereign or proprietary capacity, to secure relief inuring to the benefit of the United States or the public at large. Qui tam actions raise the question of whether the plan waiver also encompasses suits that seek to vindicate identical interests of the United States, but are commenced and prosecuted by private individuals rather than by public officials. The next Part describes the unique structure of qui tam litigation in greater detail, highlighting the ways in which it is both similar and dissimilar to the exemplar case.

2. QUI TAM ACTIONS UNDER THE FALSE CLAIMS ACT

   The "United States" can act only through the agency of persons. A qui tam enforcement scheme is one in which both public officials and private citizens may litigate on behalf of the United States to enforce statutory mandates. In a qui tam action, a private person (often called a "relator" or "informer") maintains a civil proceeding on behalf of both herself and the United States to recover damages, or to enforce penalties available under a statute prohibiting specified conduct, or both. She shares a percentage of any...