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Can't Win for Losing - the Bizarre World of the Eleventh Amendment, Governing Suits in Federal Court Against States


Friday, Mar. 21, 2003

The Eleventh Amendment to the United States Constitution has generated an enormous amount of controversy over the last few decades, among judges and scholars alike. The United States Supreme Court has creatively interpreted (some would say tortured) the Amendment's words to make them yield a counterintuitive and theoretically quite dangerous principle - namely, that a state government ordinarily cannot be sued without its consent in a federal court.

Many point out that this "state sovereign immunity" principle, if taken seriously, effectively permits states to flout the substance of federal law. Now there are two pending cases concerning the Eleventh Amendment in the Supreme Court in which states are arguably manipulating federal judicial procedure as well.

To appreciate what is at stake in these cases, and why the Supreme Court should rule against the states in both of them, we must first discuss some Eleventh Amendment basics.

The text of the Amendment, ratified in 1798, provides 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." In other words, the text says that a federal court cannot hear a suit against a State, if the plaintiff is an out-of-state citizen or an alien.

The Constitution's Supremacy Clause, however, must be reconciled with the Eleventh Amendment. The Supremacy Clause says that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." That is, it says that federal law, whatever its origin, always trumps state law.

In combination, these two provisions should be read to mean that a federal court cannot hear a suit against a State, if the plaintiff is an out-of-state citizen or an alien, unless the suit alleges a violation of federal law. After all, for federal law to truly be "supreme," it must be able to be enforced by federal judges in federal courts, no matter who the plaintiff or defendant is. The alternative is to risk that state courts (many of whose judges are elected by state citizens) will not fully enforce federal law when the defendant is a state, and the plaintiff is an out-of-stater or foreigner.

But the Supreme Court has read the Constitution very differently. Under the Court's reading, the Eleventh Amendment applies to insulate a State from suit in federal court, even when a suit alleges a violation of federal law, including the U.S. Constitution, because the Amendment is said to embody the idea of state sovereign immunity. This idea of immunity means that sometimes it will be quite hard to force states to obey valid federal laws. As if that were not bad enough, the cases currently in front of the Supreme Court involve states gaming the judicial process as well.

Frew v. Gilbert: Allowing States to Bait-and-Switch Plaintiffs

The first of the two cases, Frew v. Gilbert, is one on which the Supreme Court granted review just two weeks ago, and which will be argued and decided next Term. It involves a class action lawsuit brought in federal district court in Texas against the Texas Health and Human Services Commissioner, among others, for allegedly failing to comply with requirements under the Federal Medicaid program.

States that voluntarily opt to participate in (and receive monies under) Medicaid are required by federal law to provide certain benefits and programs to children. The plaintiff class says Texas is not doing so.

Because neither side was sure it would win if the case went to trial, and for other pragmatic reasons as well, the parties agreed to settle the litigation and enter into a consent decree. A consent decree is a document that embodies the terms of a settlement in the form of an enforceable judicial order.

The consent decree agreed to by both sides in Frew was, as one judge put it, a "lengthy document [which] orders the state defendants to implement many highly detailed and specific procedures."

The plaintiffs claim that the State failed to do what the consent decree requires, so they went back to the district court to enforce the decree. But the State said it did not have to comply, citing the Eleventh Amendment and the sovereign immunity from suit idea. The district court disagreed, but on appeal, the Fifth Circuit Court of Appeals ruled in the State's favor. It held, in an opinion notably short on analysis, that unless the requirements in the consent decree are themselves requirements imposed directly by the Medicare laws, a state is free to disregard the terms of the decree because of its Eleventh Amendment immunity.

But didn't the state "waive" such immunity when it entered into a decree whose terms themselves called for ongoing supervision by the district court in the first place? One might think so, but the Fifth Circuit said "no," because "we may find a waiver of the state's Eleventh Amendment immunity in only the most exacting circumstances [which do not exist here because the state's intent to waive was not] unequivocally expressed."

When the Supreme Court reviews the case, it should reverse the Fifth Circuit's holding. Otherwise a state can make use of the following bait-and-switch: It can settle a case it thinks it may lose by entering into a consent decree and promising to do certain things. Then - here's the switch - it can later decide that doing those things is onerous, renege on the consent decree, and retain its ability to litigate on the merits of any claims against it.

This bait-and-switch tactic would seem to offend the dignity and integrity of any federal court that oversees a consent decree, and unfairly undermine the reliance interests of those litigants who make agreements with a state. It would also mean plaintiffs will predictably lack meaningful incentives to settle any case against a state defendant; most such cases would have to go to trial even if they otherwise could have settled, wasting precious time and resources of parties and courts alike.

When it comes to the Eleventh Amendment, all bets seem to be off. But clearly, the better result here is to make such settlements fully enforceable.

The Hason Case: A State Seeks to Dismiss its Own Successful Petition

The second litigation, Medical Board of California v. Hason, is one on which USC law professor (and, I should mention in the spirit of candor, my friend) Erwin Chemerinsky has written an earlier column for this site . As Erwin, who is now the lawyer of record in the case, explained, in Hason the California Medical Board (which licenses doctors to practice in California) denied Michael J. Hason a license, even though he had practiced in New York, on the basis of his history of depression. Hason sued the State of California in federal court under Title II of the Americans with Disabilities Act (ADA), the federal law Congress enacted in 1990 to address discrimination against and accommodations for disabled persons.

Title II regulates state and local governments in the way they administer their services, programs and activities. Hason argued that California violated Title II by discriminating against him, in the way it doled out medical licenses, because of his depression-related disability.

But Hason appealed, and prevailed in the Ninth Circuit Court of Appeals by successfully arguing that Congress, in enacting Title II, had effectively stripped, or "abrogated," the Eleventh Amendment immunity. The Supreme Court has ruled that when Congress enacts a valid law under its powers to "enforce" the Fourteenth Amendment, Congress can strip away the immunity that states would otherwise enjoy under the Eleventh Amendment to be free from lawsuits under the law.

The question in Hason's case, then, becomes whether the Title II law is valid Congressional enactment under Congress' Fourteenth Amendment powers. The Ninth Circuit said yes in Hason. Other Circuits, in other cases, have said no, which is why nobody was surprised when, on November 16, 2002, the Supreme Court granted review of California's request to take up the matter.

Nor was anyone surprised when California and Dr. Hason filed their briefs on the merits, on January 10 and February 18th of this year, respectively, vigorously arguing over whether Title II is a valid Congressional enactment within the meaning of the enforcement provisions of the Fourteenth Amendment.

What was quite surprising - to virtually everyone - was the motion that California filed in the Supreme Court a few weeks ago, on March 3, asking that its petition for Supreme Court review be dismissed. This was, obviously, a complete about-face for California, which now seemed prepared to accept its Ninth Circuit defeat, at least for now.

Why did the State ask the Supreme Court to dismiss the case? Because over the last number of months, disability rights advocates in California - who fear that the Supreme Court would, if it reached the merits, reverse the Ninth Circuit - were able to prevail upon the Governor and Attorney General of California and convince them that they would not want to be politically responsible for inflicting a huge national blow against the disability rights movement. Concerned that California would win in its high court appeal, the Golden State's elected leaders heeded the pressure, and convinced the California Medical Board (technically the party who had requested Supreme Court review) to withdraw its petition.

In some ways, it may be a good thing that politics can influence a state to back away from a Supreme Court case in which the state was arguing that it couldn't be sued under federal law. Indeed, if the Eleventh Amendment is going to be interpreted (wrongfully or not) as affording legal protection for states, perhaps political pressure is all that is left available to those who are asserting federal civil rights against states. But none of that is to say that withdrawal of the case before the Supreme Court is necessarily a good thing for disability rights advocates.

This, apparently, is a question on which reasonable people may differ. Some national disability rights leaders seem to have disliked California's motion to dismiss, for a few reasons. First, as I have noted, in many parts of the country, federal courts had already ruled that Title II is not a valid Congressional exercise under the Fourteenth Amendment. Disability rights lawyers in these areas have little to lose by having the Supreme Court rule in Hason, even if the Supreme Court were to reverse the Ninth Circuit.

Moreover, while the facts in Hason might not be the most sympathetic ones imaginable from the disability rights perspective, they may be better than the facts of many other cases in the federal judicial pipeline. And because there is a split among the Circuits on the Title II issue, the question is when - not whether - the Supreme Court will weigh in. For these reasons, many Title II supporters may not appreciate California's attempt to withdraw the case.

On the other hand, as noted above, disability rights leaders in California wanted to take the case out of the Supreme Court. They already have the benefit of a favorable Ninth Circuit ruling, and apparently desire to leave well enough alone for now, even if the Supreme Court, in another case down the road, rejects the result reached by the Ninth Circuit.

If California didn't want to appeal the Ninth Circuit ruling for political reasons, it should have refrained from filing a cert petition in the first place. Allowing a party to unilaterally dismiss without repercussions after briefs have been filed - or even later, say, after arguments have been heard - would promote strategic behavior and gamesmanship.

Suppose, based on the tenor of oral argument, an appealing party thinks it will lose. Should that party be allowed to withdraw, and thereby avoid the adverse ruling? What if an appealing party, after briefing, sees another case that presents the same legal issue but on more sympathetic facts making its way up the federal appellate ladder. Should he be able to dismiss, so that the other case, rather than his own, becomes the seminal one in which the Supreme Court will rule?

Such practices, Erwin correctly argues, are unacceptable. The Supreme Court is not an arena for sport (including this kind of gamesmanship) - it is a forum for resolving important and recurring federal legal issues.

Moreover, dismissing the Supreme Court case now means that Hason and his legal advisors have expended, indeed wasted, thousands of dollars and hundreds of hours. All of this is why, Erwin argued, if the Supreme Court does dismiss the case before it, California should at least be required to compensate Hason and his lawyers for their time and efforts preparing the case for the high Court.

Of course, California could easily have the case dismissed from the Court if it were to settle the lawsuit with Hason. But the State has repeatedly rejected settlement overtures made by Hason. Indeed, California's motion to dismiss in the Supreme Court does not even foreclose the State from reasserting sovereign immunity when the case goes back to the trial court should, in the meantime, the Supreme Court take another case and rule that states do in fact have immunity from Title II lawsuits. (While there is some question whether a State could ever waive a sovereign immunity defense in such a setting, I think it could.) It is for all these reasons that Hason did not agree with California's attempt to dismiss and instead seeks some compensation should dismissal be granted.

What will the Supreme Court do with California's motion? The Court would be within its power to do any of three things: First, it could dismiss without requiring the State to pay any damages; second, it could dismiss but compensate Hason; or, third and finally, it could deny the motion and continue to hear the case (since there is still a ripe controversy, inasmuch as the case hasn't settled), perhaps appointing as amicus curiae (friend of the court) another person to present the State's side at oral argument.

Which of the three courses the Court will choose to take in the next few weeks is quite unclear. Because unilateral motions to dismiss after briefing and where no legally relevant facts have changed are rare if not unheard of, we are in uncharted territory here.

I sincerely hope the Court does not pursue the first route (dismissal without damages), just as I hope it does not affirm the Fifth Circuit in Frew. If ordinary legal and logical principles governed, I'd be quite optimistic. But the law of state sovereign immunity is not governed by ordinary principles of law and logic.

Only in the screwy world of the Eleventh Amendment could it be the case that when a State seeks to terminate a federal legal proceeding because it fears it will lose (as in Frew), and when a State seeks to terminate a federal legal proceeding because it fears it will win (as in Hason), the one left holding the bag is always the one who was victimized by the state's alleged violation of federal law in the first place.

Akhil Reed Amar is on vacation this week.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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