XIII. State Liability: the Eleventh Amendment

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

XIII. STATE LIABILITY: THE ELEVENTH AMENDMENT

A. Interplay Eleventh Amendment

The Supreme Court in of Section 1983 "Person" Issue and Will v. Michigan Department of State Police²⁴¹ held that states and state agencies are not suable § 1983 "persons" on a claim for money damages but recognized that a state official may be sued in his official capacity on a claim for prospective relief.²⁴² Although a court should first inquire whether the § 1983 defendant is a suable "person" before deciding any Eleventh Amendment issue,²⁴³ and even though resolution of the "person" issue will always (or at least almost always) obviate the need to decide the Eleventh Amendment,²⁴⁴ many courts in federal court § 1983 actions against state entities and officials proceed directly to the Eleventh Amendment issue. Perhaps this is partly because Will's definition of suable § 1983 persons was influenced by Eleventh Amendment decisional law.

B. Eleventh Amendment Protects State Treasury

The Eleventh Amendment grants the states sovereign immunity from federal court liability. Although the language of the Eleventh Amendment refers to a suit brought by a citizen of one state against another state, the Supreme Court has long interpreted the Eleventh Amendment as granting the states sovereign immunity protection even when a state is sued in federal court by one of its own citizens.²⁴⁵ At the heart of the Eleventh Amendment is its protection of the state treasury from a federal court award of monetary relief. The Supreme Court held that the Eleventh Amendment applies to § 1983 claims because, in enacting the original version of § 1983, Congress did not intend to abrogate the states' Eleventh Amendment immunity.²⁴⁶ A federal court award of § 1983 damages against a state, state agency, or state official sued in an official capacity is barred by the Eleventh Amendment.²⁴⁷

C. Young Prospective Relief

Under the doctrine of Ex parte Young,²⁴⁸ prospective relief against a state official in her official capacity to prevent future federal constitutional or federal statutory violations is not barred by the Eleventh Amendment. The Court in Ex parte Young reasoned that a state official who violated federal law is "stripped of his official or representative character" and therefore did not act for the state but as an individual. Because the Eleventh Amendment protects states and state entities and not individuals, the claim for prospective relief is not barred by the Eleventh Amendment. The Court's rationale behind the Young doctrine is fictitious because Young prospective relief operates in substance against the state and may impact substantially upon the state treasury. The Young fiction was born of necessity to enable the federal courts to ensure prospective compliance by the states with federal law.

To come within the Young doctrine, the plaintiff must establish ongoing violations of federal law and seek prospective relief. To determine whether the plaintiff has alleged a Young claim, the court "need only conduct a 'straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'"²⁴⁹ In addition, the plaintiff must name as defendant the state official who is responsible for enforcing the contested state statute in his official capacity; a claim for prospective relief against the state itself, or a state agency, will be barred by the Eleventh Amendment.²⁵⁰ Declaratory relief is within the Young doctrine, but only when there are ongoing or threatened violations of federal law.²⁵¹

When a federal court grants Young prospective relief, it has power to enforce that relief, including by ordering monetary sanctions payable out of...