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`NOTES
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`How to Assert State Sovereign
`Immunity Under the
`Federal Rules of Civil Procedure
`
`INTRODUCTION ............................................................................. 762
`I.
`
`THE UNCLEAR HISTORY OF STATE SOVEREIGN
`IMMUNITY IN THE UNITED STATES .................................... 766
`A.
`Importation of State Sovereign Immunity
`and Chisholm v. Georgia ........................................ 767
`The Eleventh Amendment and Its Interpretation ... 768
`1.
`The Ex Parte Young Exception .................... 771
`2.
`The Section Five Exception ......................... 772
`The Twentieth Century: Defense
`from Congressional Abrogation .............................. 773
`THE COMPLEX RELATIONSHIP BETWEEN
`STATE SOVEREIGN IMMUNITY AND THE
`FEDERAL RULES OF CIVIL PROCEDURE .............................. 774
`A.
`Differences in Judicial Approaches
`to the Eleventh Amendment .................................... 776
`1.
`The Jurisdictional Approach ....................... 776
`2.
`The Quasi-jurisdictional Approach .............. 777
`3.
`The Constant: Turbulence and Disorder ..... 778
`Clear Consensus: State Sovereign Immunity
`Bars Federal Court Diversity Jurisdiction ............. 779
`Analyzing State Sovereign Immunity’s Attributes
`and Their Procedural Operation ............................ 780
`1.
`Waiver and Consent .................................... 780
`2.
`Sua Sponte Consideration ........................... 783
`3.
`The Point When States Should Raise
`Their Sovereign Immunity .......................... 786
`a.
`The Level of Factual Inquiry ............. 787
`b.
`The Burden of Proof .......................... 788
`Appeals from the Denial of
`State Sovereign Immunity .......................... 789
`
`B.
`
`C.
`
`B.
`
`C.
`
`II.
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`4.
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`D.
`
`E.
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`Analogizing the Court’s Doctrinal
`Approaches to the Federal Rules ............................ 790
`State Sovereign Immunity
`in Multiparty Lawsuits .......................................... 793
`III. HOW TO ASSERT STATE SOVEREIGN IMMUNITY UNDER
`THE FEDERAL RULES OF CIVIL PROCEDURE ....................... 796
`A.
`Rule 12(b)(1): State Sovereign Immunity
`as a Limit on Subject-Matter Jurisdiction.............. 797
`Rule 12(b)(6): State Sovereign Immunity
`as a Dispositive, Affirmative Defense ..................... 798
`Rule 12(b)(7): State Sovereign Immunity
`in Multiparty Suits ................................................ 799
`CONCLUSION ................................................................................ 800
`
`
`B.
`
`C.
`
`INTRODUCTION
`
`Twenty years have passed since the Supreme Court announced
`dramatic changes to the doctrine of state sovereign immunity in
`Seminole Tribe of Florida v. Florida.1 This doctrine prevents “suits by
`private parties against unconsenting States”2 in recognition of the
`state’s power to govern itself and its citizens freely, as well as the
`financial impact lawsuits have on the state’s treasury.3 Since Seminole
`Tribe, the Supreme Court has—in a series of contentious 5-4
`decisions—increasingly allowed this doctrine to immunize states and
`their officers from suits arising under the federal laws and sometimes
`even the Constitution.4 But while the Court has expanded state
`sovereign immunity’s substantive doctrine, it has neglected how state
`sovereign immunity should operate under the Federal Rules of Civil
`Procedure.
`Without guidance from the Supreme Court, federal courts
`inconsistently apply state sovereign immunity claims to the Federal
`Rules, each of which can negatively impact the parties’ substantive
`and procedural rights. Some courts dismiss disputes because they lack
`jurisdiction (some say subject-matter jurisdiction over the dispute,
`others say personal
`jurisdiction over the state) without ever
`
`
`
` 517 U.S. 44 (1996).
` Id. at 72.
` See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1430–32
`
`1.
`2.
`
`3.
`
`(1987).
` See Travis Gunn, The Fourteenth Amendment: A Structural Waiver of State Sovereign
`
`4.
`Immunity from Constitutional Tort Suits, 35 N. ILL. U. L. REV. 71, 73–74 (2014) (citing cases);
`infra Sections I.C, II.A.
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`considering the underlying merits of the plaintiff’s claim.5 Other
`courts acquire
`jurisdiction over the state defendant, thereby
`compelling the state to appear before a different sovereign’s tribunal
`and defend itself.6 Yet more courts will issue a judgment against a
`state defendant but cannot enforce that judgment because the state
`belatedly raises its immunity after the litigation’s conclusion.7 And
`many courts raise the state sovereign immunity question sua sponte,
`which denies both parties their right to determine how their litigation
`proceeds.8 But all courts diverge in their treatment of the parties’
`rights because they inconsistently apply state sovereign immunity
`claims to the Federal Rules, not because of the specific facts at issue in
`any one case.
`If the assertion of state sovereign immunity remains a series of
`ad hoc procedural determinations, then it threatens the very reason
`for having a unified set of procedural rules—“to secure the just,
`speedy, and inexpensive determination of every action.”9 Clear
`procedural rules promote accurate dispute resolution on the merits,
`respect the parties’ rights, and ultimately support a just judicial
`system.10 Unclear procedural rules, by contrast, prejudice the parties
`because unclear rules are inherently unpredictable, produce erroneous
`decisions, and undermine the public’s faith in the justness of the
`judicial system.11 State sovereign immunity is currently classified as
`the latter, which is a problem for individual litigants and states alike.
`The judicial system should not require plaintiffs to guess when state
`sovereign immunity can be raised or whether it is the defendant or the
`court that raises the defense. And the judicial system should decide if
`
`
`
` E.g., Hutto v. S.C. Ret. Sys., 899 F. Supp. 2d 457, 475–76 (D.S.C. 2012) (granting
`5.
`defendant’s motion to dismiss for lack of subject-matter jurisdiction); In re PEAKSolutions Corp.,
`168 B.R. 918, 922 n.10 (Bankr. D. Minn. 1994) (“[C]haracterization of the defense of sovereign
`immunity as going to subject-matter jurisdiction is not accurate. . . . [I]ts proper rubric, however,
`is under Rule 12(b)(2)—‘lack of jurisdiction over the person.’ ”); see FED. R. CIV. P. 12(b)(1)–(2).
`
`6.
` E.g., Seminole Tribe of Fla. v. Florida, 801 F. Supp. 655, 663 (S.D. Fla. 1992) (denying
`defendant’s motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)); see FED. R.
`CIV. P. 12(b)(6).
`
`7.
` E.g., Searcy v. Strange, No. 14–0208–CG–N, 2014 WL 4322396, at *6 (S.D. Ala. Aug.
`28, 2014) (dismissing multiple state defendants after considering nonjoinder of parties through
`Rule 12(b)(7)); Memorandum from Chief Justice Roy S. Moore to Ala. Prob. Judges 23 (Feb. 3,
`2015),
`http://media.al.com/news_impact/other/Letter%20from%20Chief%20Justice%20Moore%
`20to%20probate%20judges.pdf [perma.cc/G2QH-3XVU] (ordering state judges to disobey a
`federal court judgment because of sovereign immunity); see also FED. R. CIV. P. 12(b)(7).
`
`8.
` E.g., Nail v. Michigan, No. 1:12–cv–403, 2012 WL 2052109, at *1 n.1 (W.D. Mich. May
`9, 2012) (raising issue of state sovereign immunity sua sponte); see FED. R. CIV. P. 12(h)(1).
`
`9.
` FED. R. CIV. P. 1.
`
`10.
` See Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic
`Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 919 (1999).
`
`11.
` See id. at 933–34.
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`states enjoy the procedural rights of sovereigns or of individual
`litigants, rather than oscillate between the two.
`The Supreme Court continuously punts on questions that could
`clarify state sovereign immunity’s relationship to the Federal Rules
`and how that relationship affects parties’ procedural and substantive
`rights.12 These questions divide along three lines: foundational
`questions—whether state sovereign
`immunity
`is or
`is not
`jurisdictional; procedural questions—how and when to raise state
`sovereign immunity claims; and practical questions—how to reconcile
`state sovereign immunity with multiparty lawsuits.
`First, the foundational questions ask whether state sovereign
`immunity affects subject-matter jurisdiction, personal jurisdiction, or
`acts as a quasi-jurisdictional immunity from suit. The Court has
`acknowledged that “the Eleventh Amendment defense sufficiently
`partakes of the nature of a jurisdictional bar,”13 but it has also
`equivocated that the doctrine is neither “consistent with . . . practice[s]
`regarding personal jurisdiction,”14 nor definitively a matter of subject-
`matter jurisdiction.15 Indeed, the Court has also said the exact
`opposite: “[t]he Amendment, in other words, enacts a sovereign
`immunity from suit, rather than a nonwaivable limit on the Federal
`Judiciary’s subject-matter jurisdiction.”16 With such flimsy guidance,
`it is unsurprising that lower courts diverge as to whether state
`sovereign immunity is or is not jurisdictional.17
`Second, the procedural questions ask at what point in
`proceedings states must raise their sovereign immunity, and whether
`the court can raise the issue. Were sovereign immunity a matter of
`Article III jurisdiction, courts would not just be allowed, but
`compelled, to raise it sua sponte.18 But the Supreme Court has
`expressly disclaimed such a requirement, stating that “we have never
`held that it is jurisdictional in the sense that it must be raised and
`
`
`
` See, e.g., Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 391–92 (1998) (“Even making the
`12.
`assumption that Eleventh Amendment immunity is a matter of subject-matter jurisdiction—a
`question we have not decided . . . .”); Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 515 n.19
`(1982).
` Edelman v. Jordan, 415 U.S. 651, 678 (1974).
`
`13.
` Schacht, 524 U.S. at 395 (Kennedy, J., concurring).
`
`14.
` Patsy, 457 U.S. at 515 n.19.
`
`15.
` Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997).
`
`16.
` Compare United States v. Virgin Islands, 363 F.3d 276, 284 (3d Cir. 2004) (“Eleventh
`
`17.
`Amendment immunity is relevant to jurisdiction . . . .”), with Hill v. Blind Indus. & Servs. of Md.,
`179 F.3d 754, 760 (9th Cir. 1999) (“We conclude[ ] that Eleventh Amendment immunity ‘should
`be treated as an affirmative defense.’ ”).
`
`18.
` See FED. R. CIV. P. 12(h)(1).
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`decided by this Court on its own motion.”19 Conversely, were sovereign
`immunity an affirmative defense, it would need to be asserted at some
`point before a decision on the merits.20 The Supreme Court has evaded
`this question as well, as it allows state sovereign immunity to “be
`raised at any stage of the proceedings,” including for the first time on
`appeal.21 The Court’s approach has bred inconsistent practices among
`federal courts, which consider state sovereign immunity at any and all
`points of the litigation, whether raised by defendants or on the court’s
`own motion.22
`Third, the practical questions ask how federal courts should
`manage multiparty lawsuits that include both sovereign and non-
`sovereign entities. Here, the Supreme Court has provided some
`guidance in the foreign sovereign immunity context.23 “[W]here
`sovereign immunity is asserted, and the claims of the sovereign are
`not frivolous, dismissal of the action must be ordered where there is a
`potential for injury to the interests of the absent sovereign.”24 But
`federal courts arrive at strikingly varied results when applying this
`principle because they do not weigh state sovereign immunity equally
`in all cases: some dismiss the entire action, while others dismiss only
`the sovereign and allow the litigation to proceed despite possible
`injury to the absent sovereign.25
`This Note addresses these three lines of questions: the
`foundational aspects of state sovereign immunity, its procedural
`aspects within litigation, and practical questions of multiparty
`lawsuits. Upon answering these questions, this Note offers an
`approach
`for how state sovereign
`immunity should operate
`procedurally in federal courts.
`Part I demonstrates the volatile history of the state sovereign
`immunity doctrine, from its importation into United States legal
`jurisprudence, to the impetus for passing the Eleventh Amendment, to
`the broadening of that Amendment’s text, and the doctrine as a whole,
`
`
`
` Patsy, 457 U.S. at 515 n.19 (emphasis added).
`19.
` See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012).
`20.
`
` E.g., Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998).
`21.
`
` Compare Nail v. Michigan, No. 1:12–CV–403, 2012 WL 2052109, at *1 n.1 (W.D. Mich.
`22.
`
`May 9, 2012) (“[I]t is appropriate for the court to raise the issue of Eleventh Amendment sua
`sponte.”), with Katz v. Regents of Univ. of Cal., 229 F.3d 831, 834 (9th Cir. 2000) (stating that
`“[u]nless the State raises the matter, a court can ignore” state sovereign immunity issues).
`
`23.
` Republic of the Philippines v. Pimentel, 553 U.S. 851, 867 (2008).
`
`24.
` Id. at 867; see FED. R. CIV. P. 12(b)(7), 19.
`
`25.
` Compare Diaz v. Glen Plaid, LLC, No. 7:13–cv–853–TMP, 2013 WL 5603944, at *8–9
`(N.D. Ala. Oct. 11, 2013) (dismissing entire action in light of state sovereign immunity), with
`Searcy v. Strange, No. 14–0208–CG–N, 2014 WL 4322396, at *6 (S.D. Ala. Aug. 28, 2014)
`(continuing action after dismissal of state sovereign).
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`by the twenty-first century. This controversial history shows that any
`solution must be adaptable to the two dominant and competing views
`of state sovereign immunity on the Supreme Court. Part II considers
`those two views on the Court and how they inform state sovereign
`immunity’s many unique attributes. Part II also places the doctrine’s
`attributes within the context of the Federal Rules of Civil Procedure in
`order to determine the technical aspects for asserting state sovereign
`immunity and assess how they impact the parties’ rights. Part
`II concludes by considering an innovative approach courts deploy in
`multiparty suits involving misjoinder in the foreign sovereign
`immunity context.
`Part III offers a three-part proposal for asserting state
`sovereign immunity. First, when a suit is based on diversity
`jurisdiction, that suit is outside the federal court’s subject-matter
`jurisdiction and must be dismissed under Rule 12(b)(1) or sua sponte
`by the court.26 Second, for all other suits against a single state, state
`sovereign immunity is a quasi-jurisdictional immunity from suit that
`must be evaluated through Rule 12(b)(6).27 Third, when multiple
`parties are sued, including a state sovereign, Rule 12(b)(7) offers a
`framework for balancing the sovereign’s
`interests against the
`plaintiff’s desire for a remedy.28
`
`I. THE UNCLEAR HISTORY OF STATE SOVEREIGN IMMUNITY
`IN THE UNITED STATES
`
`The doctrine of state sovereign immunity has a consistently
`turbulent history, stretching from the country’s founding up to the
`present day. Various legal and political justifications have been
`offered since before the Constitution both for and against the state
`sovereign immunity doctrine. The lack of a clear consensus about state
`sovereign immunity’s historical foundations and what role it should
`play in the United States generates uncertainty about how the
`doctrine should operate procedurally in the federal courts. This Part
`details the history of state sovereign immunity in the United States,
`as well as the Court’s precedents and justifications for the doctrine, in
`order to show why federal courts are still struggling to deal with the
`doctrine’s procedural aspects today.
`
`26.
`27.
`28.
`
` FED. R. CIV. P. 12(b)(1).
` Id. 12(b)(6).
` Id. 12(b)(7).
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`A. Importation of State Sovereign Immunity and Chisholm v. Georgia
`
`English sovereignty principles initially informed the American
`colonists’ understanding of sovereignty. In England, the idea of
`sovereignty initially arose out of its monarchical structure—a
`monarch that ruled by divine right.29 The divine element suggested
`that the monarch’s power was limitless and infallible, thus precluding
`citizen suits.30 However, the American understanding of sovereignty
`evolved as the British Empire expanded and its governmental
`apparatus changed; by the eighteenth century, the monarch still
`enjoyed immunity because the “king can do no wrong,” but the
`monarch’s royal officers could be liable in citizen suits for private
`wrongs.31 The colonists’ perceptions of sovereignty similarly evolved so
`that by the Revolutionary War the concept described “popular
`sovereignty” stemming from the people in the colonies, with limited
`powers delegated to the government.32 Without a king, this made
`sense. But neither the Articles of Confederation nor the Constitution
`expressly defined the extent of sovereignty provided to the people, the
`states, or the federal government.33
`federal
`the state and
`that
`Many colonists presumed
`governments preserved some immunity given the doctrine’s roots in
`English common law.34 To be sure, Alexander Hamilton’s Federalist
`No. 81 echoed this sentiment by stating, “It is inherent in the nature
`of sovereignty not to be amenable to the suit of an individual without
`its consent.”35 His statement assuaged the states’ fears that the
`Constitution, once ratified, would abrogate their sovereign immunity
`and enable citizen suits for debts owed them from the Revolutionary
`War.36
`
`
`
` See Amar, supra note 3, at 1430–32.
`29.
` See id.
`30.
`
` John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A
`31.
`
`Reinterpretation, 83 COLUM. L. REV. 1889, 1895–97 (1983); Louis L. Jaffe, Suits Against
`Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1, 2–8 (1963).
`
`32.
` See Amar, supra note 3, at 1438–39; Gibbons, supra note 31.
`
`33.
` The debate over whether sovereignty derives from the people of the United States or
`the people of the several states remains spirited today. Compare U.S. Term Limits, Inc. v.
`Thornton, 514 U.S. 779, 821 (1995) (Stevens, J.) (“[T]he United States, therefore, is not a
`confederation of nations in which separate sovereigns are represented . . . but is instead a body
`composed of representatives of the people.”), with id. at 845 (Thomas, J., dissenting) (“Nothing in
`the Constitution deprives the people of each State of the[ir] power . . . .”).
`
`34.
` See Guy I. Seidman, The Origins of Accountability: Everything I Know About the
`Sovereign’s Immunity, I Learned From King Henry III, 49 ST. LOUIS U. L.J. 393, 477–80 (2005).
`
`35.
` THE FEDERALIST NO. 81, at 399 (Alexander Hamilton) (Lawrence Goldman ed., 2008).
`
`36.
` JOHN PAUL STEVENS, SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE
`CONSTITUTION 82–85 (2014).
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`Nevertheless, the Constitution’s express text contravened this
`presumptive
`immunity. Article III provided
`for
`federal court
`jurisdiction in “all cases, in law and equity, arising under” the
`Constitution and federal laws and over “controversies between a state
`and citizens of another state.”37 The Supreme Court gave effect to the
`latter provision but declined to recognize state sovereign immunity
`when it decided Chisholm v. Georgia in 1793.38 An executor from
`South Carolina sued the state of Georgia over debts.39 The state
`declined to appear in court, arguing via written declaration that it
`enjoyed sovereign immunity and could not be sued without its
`consent.40
`The Court held that Georgia lacked sovereign immunity.41
`Among the several justifications for its holding were that: Article III’s
`text was a clear jurisdictional mandate that did not require
`addressing sovereignty;42 English sovereign immunity was different
`from and incompatible with the American states, though it was
`unclear whether the federal government enjoyed common law
`immunity like the British Crown;43 and, sovereign immunity was
`wholly incompatible with republican government.44 Only Justice
`Iredell dissented, finding that the Constitution imported England’s
`common law principles of sovereign immunity to the states, and the
`First Judiciary Act did not directly abrogate the states’ immunity.45
`
`B. The Eleventh Amendment and Its Interpretation
`
`The Supreme Court’s Chisholm decision that Article III
`abrogated state sovereign immunity surprised state representatives
`and legislatures because their states could now be sued over war
`debts.46 Shortly after Chisholm, Congress
`introduced multiple
`
`
`
` U.S. CONST. art. III, § 2, cl. 1.
`37.
` Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
`38.
`
` Id. at 420–29.
`39.
`
` Id.; see Amar, supra note 3, at 1467–68.
`40.
`
` Chisholm, 2 U.S. at 479.
`41.
`
` See id. at 450–52 (Blair, J.); id. at 466–68 (Cushing, J.).
`42.
`
` See id. at 472, 479 (Jay, C.J.).
`43.
`
` See id. at 461–66 (Wilson, J.).
`44.
`
` See id. at 449–50 (Iredell, J., dissenting) (“Congress has provided no new law in regard
`45.
`
`to this case” and “there are no principles of the old law . . . that in any manner authorize the
`present suit, either by precedent or by analogy.”); see also Judiciary Act of 1789, ch. 20, § 13, 1
`Stat. 73 (1789). Notably, “the reasoning in Justice Iredell’s dissent would not have prevented
`Congress from modifying or abrogating” state sovereign immunity. STEVENS, supra note 36, at
`90.
` See James E. Pfander, History and State Suability: An “Explanatory” Account of the
`46.
`
`Eleventh Amendment, 83 CORNELL L. REV. 1269, 1333–43 (1998). But see Gibbons, supra note 31,
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`proposals to overrule the decision, one of which was ultimately ratified
`in 1798 as the Eleventh Amendment.47 The Amendment 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.”48 By its express terms, the Eleventh
`Amendment removes diversity suits from federal court jurisdiction.
`However, the Eleventh Amendment’s text does not expressly
`limit federal court jurisdiction over any other suits against states or
`even recognize a general right to state sovereign immunity.49 Indeed,
`Congress declined to adopt an alternative amendment with broader
`language that provided state sovereign immunity beyond diversity
`suits.50 Nevertheless, nearly one hundred years after ratification the
`Court held that the Eleventh Amendment codified a sovereign
`immunity doctrine far broader than its bare text.51
`In the 1890 case Hans v. Louisiana, a citizen of Louisiana sued
`his state for interest payments on bonds accumulated before the state
`amended its constitution to no longer authorize those payments.52
`While it is unclear what cause of action enabled federal court
`jurisdiction in Hans,53 the Court’s ultimate grounds for dismissal were
`
`
`
`at 1893–94 (arguing that accounts are exaggerated regarding the public’s outrage over
`Chisholm).
`
`47.
` See Pfander, supra note 46, at 1333–40..
`
`48.
` U.S. CONST. amend. XI.
`
`49.
` See id.; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 258–302 (1985) (Brennan, J.,
`dissenting) (arguing that the Eleventh Amendment’s text and history compel an interpretation
`that the Amendment only limits diversity jurisdiction).
`
`50.
` See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 110–11 (1996) (Souter, J.,
`dissenting). The proposed language stated that:
`[N]o state shall be liable to be made a party defendant, in any of the judicial courts . . .
`under the authority of the United States, at the suit of any person or persons, whether
`a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate,
`whether within or without the United States.
`
`Id. at 111.
`
`51.
` Hans v. Louisiana, 134 U.S. 1, 15 (1890); see also Louisiana ex rel. Elliott v. Jumel, 107
`U.S. 711, 728 (1883). The Supreme Court discussed the Eleventh Amendment in dicta
`throughout the 1800s. See, e.g., Ex parte Madrazzo, 32 U.S. (7 Pet.) 627, 632 (1833) (holding that,
`in the absence of admiralty jurisdiction, the Eleventh Amendment bars a private party from
`bringing suit in the Supreme Court against a state); Cohens v. Virginia, 19 U.S. 264, 306 (1821)
`(stating that “the privilege of being parties in a controversy with a State, had been extended in
`the text of the [C]onstitution” only to “the case of a citizen of another State, or the citizen or
`subject of a foreign State” and that “it was necessary to take away that privilege” through the
`Eleventh Amendment).
`
`52.
` Hans, 134 U.S. at 1–3.
`
`53.
` Some suggest Louisiana’s reneging of debt obligations enabled an implied right of
`action under the Contracts Clause. Amar, supra note 3, at 1476–78; see U.S. CONST. art. I, § 10,
`cl. 1 (“No State shall [make] any . . . [l]aw impairing the Obligation of Contracts . . . .”).
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`clear: it lacked jurisdiction because the state of Louisiana enjoyed
`sovereign immunity from the Eleventh Amendment.54 Because a
`literal reading of the Eleventh Amendment did not preclude the suit,
`the Hans Court relied on background assumptions about state
`sovereign immunity to reach its holding.55 The Eleventh Amendment
`was intended to overrule Chisholm and reset the states’ expectation
`that they enjoyed full rights as sovereigns upon ratifying the
`Constitution.56 The Court reasoned that confining the Amendment’s
`reach solely to diversity jurisdiction but still allowing citizens to sue
`their own states was “almost an absurdity on its face.”57
`Hans did not result solely
`from Eleventh Amendment
`background assumptions, but also from anti-federal government and
`pro-states’ rights sentiments at the Reconstruction Era’s end.58 During
`the post–Civil War era, the federal government attempted to both
`improve the quality of life for freed slaves and sanction the former
`Confederate states.59 But an economic panic, increasing racial
`violence, and a gridlocked presidential election all derailed the federal
`government’s agenda.60 This maelstrom of events caused public
`backlash against Reconstruction efforts.61 To prevent further crisis,
`the major political parties brokered a deal to resolve the election that,
`in return, stopped the federal Reconstruction agenda.62 The Supreme
`Court enforced this deal in Hans and other rulings that were pro-
`states’ rights, limited the federal government’s reach over the states,
`and prevented people from holding states and state actors liable.63
`
`
`
` Hans, 134 U.S. at 16–19.
`54.
` See id. at 12–13 (quoting THE FEDERALIST NO. 81, supra note 35, at 399 (Alexander
`55.
`
`Hamilton) (“It is inherent in the nature of sovereignty not to be amenable to the suit of an
`individual without its consent.”)).
`
`56.
` See id. at 13–17 (citing discussion at the Virginia Convention where it was declared
`that “no gentleman [should] think that a state will be called at the bar of the federal court”).
`
`57.
` Id.
`
`58.
` STEVENS, supra note 36, at 91–92.
`
`59.
` Id. at 86–87.
`
`60.
` Id. at 86–89.
`
`61.
` Id. at 89.
`
`62.
` Id. at 87–88.
`
`63.
` See, e.g., The Civil Rights Cases, 109 U.S. 3, 25 (1883) (holding that Congress had no
`authority to pass legislation preventing private entities from discriminating on the basis of race);
`United States v. Cruikshank, 92 U.S. 542, 549–53 (1875) (holding that the original Bill of Rights
`did not apply to state action through the Fourteenth Amendment); The Slaughter-House Cases,
`83 U.S. 36, 55–56 (1873) (limiting the scope of the Privileges and Immunities Clause and
`declaring that neither the Thirteenth nor Fourteenth Amendment impairs the general police
`power of the states) (1873).
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`2016]
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`ASSERTING STATE SOVEREIGN IMMUNITY
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`771
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`1. The Ex Parte Young Exception
`
`The Court did not infinitely broaden state sovereign immunity.
`Just 18 years after Hans, the Court created an exception to the
`Eleventh Amendment for suits against state officials acting within
`their official capacities.64
`In Ex parte Young, shareholders of a railroad company sued to
`enjoin enforcement of a Minnesota law setting state railroad rates.65
`The shareholders argued that enforcement of the law violated their
`due process rights because the statute included harsh penalties, and
`outright disobedience of the law meant “subject[ing] themselves to the
`ruinous consequences which would inevitably result.”66 The lawsuit
`named
`the state’s attorney general, who claimed sovereign
`immunity.67 The Court enjoined enforcement of the law because a
`state cannot engage in actions that violate the Constitution or federal
`law, as both are supreme over the states.68 Thus, the Court held that
`state sovereign immunity does not protect a state official who engages
`in unconstitutional actions.69
`The Ex parte Young doctrine exists today but is riddled with
`exceptions.70 Although plaintiffs may seek injunctive relief against
`state officials, that relief must be prospective, not retrospective.71 And
`the type of relief sought limits the doctrine’s application, such that a
`claim is barred where the injunctive relief too closely resembles a suit
`for monetary damages.72 These exceptions to Ex parte Young raise
`questions about state sovereign immunity’s foundations. First, given
`that states indemnify suits against their officials, what purpose does it
`serve to permit suits against state officials but not against states
`
`
`
` See Ex parte Young, 209 U.S. 123, 166–68 (1908).
`64.
` Id. at 126–32.
`65.
`
` Id. at 130.
`66.
`
` Id. at 131, 149.
`67.
`
` See id. at 152, 166–68; see also U.S. CONST. art. VI, cl. 2 (“This Constitution, and the
`68.
`
`Laws of the United States . . . shall be the supreme Law of the Land.”).
`
`69.
` See Ex parte Young, 209 U.S. at 159–61 (“The state has no power to impart to [a
`government official] any immunity from responsibility to the supreme authority of the United
`States.”).
`
`70.
` See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254–57 (2011) (“Ex parte
`Young cannot be used to obtain an injunction requiring the payment of funds from the State’s
`treasury . . . or an order for specific performance of a State’s contract . . . .”).
`
`71.
` Edelman v. Jordan, 415 U.S. 651, 666–68 (1974).
`
`72.
` Id. at 668; see Ex parte Young, 209 U.S. at 197 (Harlan, J., dissenting) (arguing that
`sovereign immunity still exists when “the state, although not named on the record as a party, is
`the real party whose action is sought to control”); cf. In re Ayers, 123 U.S. 443, 515–16 (1887)
`(denying plaintiff’s suit for injunctive relief compelling state’s specific performance of contract).
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`themselves?73 Second, are plaintiffs actually able to use the Ex parte
`Young doctrine to hold state officials democratically accountable
`through lawsuits?74 These questions turn on whether state sovereign
`immunity is foundationally a jurisdictional or quasi-jurisdictional
`doctrine,75 as well as on how the doctrine’s application to the Federal
`Rules impacts the parties’ rights in practice.76
`
`2. The Section Five Exception
`
`Another exception to the broad state sovereign immunity
`envisioned by Hans appeared in Fitzpatrick v. Bitzer.77 Fitzpatrick
`considered whether state employees whom the state discriminated
`against were entitled to a remedy under Title VII of the Civil Rights
`Act.78 Because the Fourteenth Amendment was enacted after the
`Eleventh Amendment, the Court found that the more recent
`Amendment altered the balance of power between the states and
`federal government, enabling congressional intrusion into “spheres of
`autonomy previously reserved to the States.”79 Accordingly, state
`sovereign immunity is inapplicable when Congress passes legislation
`pursuant to its Section Five enforcement powers under the Fourteenth
`Amendment.80 The Fitzpatrick ex