A Brief Primer on Sovereign Immunity
Sovereign immunity has roots dating back to the 11th century. In 1215, in the wake of the Magna Carta, English monarchs began waiving the right of an individual to sue the crown in what became known as the "doctrine of the King can do no wrong." This doctrine evolved and expanded over the centuries to include other sovereigns.
The principle of sovereign immunity, as we understand it today in the United States, stems from the Eleventh Amendment, which provides:
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 .
By its terms the Eleventh Amendment does not bar suits of a citizen against his or her own state and federal suits by citizens against a state are dealt with under the principles of common law sovereign immunity. Through its holding in Ex Parte Young, however, the United States Supreme Court created a narrow exception for federal suit against a state officer, who is sued in their official capacity, provided the state officer has some relation to the enforcement of the challenged state law and it is clear that the state officer will enforce the state law, and therefore the exception to Eleventh Amendment immunity will apply.
There are a few exemptions to Eleventh Amendment immunity which allow a state entity to be sued. Chief among them is Congress’ ability under Section 5 of the Fourteenth Amendment when acting to protect constitutionally granted rights.
Waiving and Exceptions to Sovereign Immunity
However, there are several exceptions to the strict doctrine of sovereign immunity that may allow a plaintiff to sue a state in federal court, including when the state has specifically consented to be sued or has waived its sovereign immunity under the Eleventh Amendment. Federal courts will typically follow the rules set forth by Congress as the source of the law in order to determine whether the formal requirements of sovereign immunity have been waived.
In addition to Congressional consent to waive sovereign immunity, there are other exceptions to the Eleventh Amendment defense such as: (1) when the suit is brought by the state’s own citizens; (2) when the state is proceeding under its special function to enforce the laws of the United States to protect the rights of the citizen of another state; (3) when the state has consented to the action against it by its own choice through general or specific statutes that permit such an action; (4) when the action is against an officer in his official capacity for the purpose of enforcing transfer of federal funds to a state not previously intended for that state; and (5) when the relief sought proves to predictably affect contract rights of third-parties. The Immunity Defense is broader in scope than Governmental Official Immunity ("GOI"), which applies only to state agents and employees, not the states themselves, sovereign and otherwise. The federal courts have applied the above exceptions to suits brought against states (including municipal corporations) in federal court.
Certain types of actions against a state typically are exempt from the Eleventh Amendment "court made" requirements. Examples include actions for collection of debts with the federal government, wage garnishments to satisfy federal tax liabilities, and pension funds. In some cases, if the federal claim is so closely related to the state claim that it falls under constitutional supremacy protections, claims can be maintained against the state.
A Brief Primer on the Eleventh Amendment
The Eleventh Amendment to the United States Constitution further restricts the ability to sue the state in federal court. The U.S. Supreme Court defined the scope of 11th Amendment Protection for the states in Hans v. Louisiana, 134 U.S. 1 (1890). In Hans, a Louisiana citizen sued the State of Louisiana in federal court. The U.S. Supreme Court found that the 11th Amendment protects states from being sued for claims arising under federal common-law as well as state law. This wide-reaching exception to the Waiver Waiver Act includes all constitutional claims for money damages against states in federal court as well as requests for declaratory and injunctive relief. It also includes claims for money damages against state employees or officials in their official capacity (typically for acts committed within the scope of their employment). Some exceptions exist, including claims against private individuals under state law and claims where the state consents to suit in federal court.
Suing States Successful: Notable Cases
While the doctrine of state immunity can seem insurmountable to plaintiffs in many cases, in some cases plaintiffs have been able to overcome the doctrine and sue the State successfully in Federal Court. In Kirschstein v. Haynes, the plaintiff was a state employee over whom undisputedly the State Board of Medical Licensure exercised mandatory control. Kirschstein v. Haynes, 758 F.2d 1089, 1092-93 (10th Cir. 1985). The plaintiff alleged a § 1983 action against various state officials for terminating her employment in retaliation for her exercise of free speech. The issue in Kirschstein was whether the defendant state officials had immunity from suit under the Eleventh Amendment. Id at 1094. The Tenth Circuit Court of Appeals stated that under settled Supreme Court law, a federal court may enjoin government officials’ future conduct that is not authorized by state law without running afoul of the Eleventh Amendment. Id. However, where the state officials acted within the limits of state law, their actions are protected by the Eleventh Amendment. See id. (citing Puppolo v. New Hampshire, 525 F.2d 1269, 1270 (1st Cir. 1975)) . Thus, the Court determined, the vote of each board member to affirm the license revocation was a final action of the state and was authorized by state law. Id. Therefore, the state defendants could not be held liable for monetary damages and certain equitable relief under 42 U.S.C. § 1983. Id. However, the Court further stated that the doctrine of qualified immunity should be addressed. Id. Quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), "the doctrine of qualified immunity gives ‘ample room for mistaken judgment’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’" Id. at 1095. The Court concluded that the qualified immunity defense provides protection for state officials acting to terminate employment when such a decision is based on a reasonable but mistaken belief of state law. Id. It is clear from the subsequent law on this issue, that the Eleventh Amendment has been narrowed considerably since the Eleventh Amendment did not create sovereign immunity, but was created to provide some immunity for states from being sued for state actions after they consent to be sued. The law today is much clearer and more straightforward with respect to pursuing claims against states in federal court.
Strategies for Suing a State
Before undertaking federal litigation against a state, parties should understand state sovereignty. The Eleventh Amendment, which is made applicable to actions in federal court by the Constitution’s Supremacy Clause, limits the jurisdiction of federal courts. Federal courts may only hear cases involving state officials when a party complies with the Ex parte Young doctrine. The Ex parte Young doctrine allows parties to sue state officials for prospective relief in federal court, provided that the party seeks relief that addresses an ongoing violation of federal law.
Although federal courts can hear Ex parte Young claims, plaintiffs must take specific legal steps to avoid dismissal of their claims. To avail themselves of Ex parte Young, plaintiffs must expressly name a state official as a defendant, as opposed to naming a state or a state agency. A plaintiff must also show that the state official has some connection to the enforcement of the challenged law, so a general supervisory role is usually insufficient. A plaintiff can often overcome this hurdle by identifying an official responsible for enforcing the state law or regulation at issue. Additionally, the doctrine may not apply if there is ample precedent finding that the challenged law does not result in a continuing violation of federal law.
Challenging the conduct of a state official is often more difficult than suing an individual or corporate defendant because the state or agency often covers the judgment. For example, if a plaintiff sues a state corrections officer for violating federal law in a federal court that has jurisdiction over the underlying cause of action, the plaintiff may be able to obtain an award even if the defendant does not have the ability to pay the amount owed under the court’s order. However, if the plaintiff sues the officer’s employer before litigating the merits of the case, the Eleventh Amendment can bar the lawsuit. The Eleventh Amendment immunizes states and their subunits from suit if the federal court would be required to enter a money judgment against them. In these situations, plaintiffs must satisfy the Ex parte Young exception in order to proceed with their lawsuits.
Federal Legislation Impact
There are some instances in which the federal government can exercise its power to sue a state or waive its sovereign immunity based on its own statutes. Federal legislation can explicitly allow for lawsuits against states, especially to protect rights conferred under the Constitution or to address federally controlled property. For example, the Civil Rights Act of 1964 is one of the more common federal laws used to sue a state. Title VII of the act states that no employer can discriminate based on religion, gender, race, color, or national origin. Because this is a right given to citizens under the Constitution, the U.S. Department of Justice argues that it has the right to sue any state entities violating this law.
Another important federal law that can be used against a state is the Indian Self-Determination and Education Assistance Act (P.L. 93-638). This is a law that gives Native American tribes the ability to take control over several federal programs that affect them . Often, these programs involve health care, education, social services, and their natural resources. Once a tribe takes control, the laws fall under the Department of Interior. States that are sued in court under this law are not protected by sovereign immunity.
In addition to the aforementioned exceptions, Sec. 42 U.S.C. § 1983 also allows citizens of the United States to sue a government entity for the deprivation of their constitutional rights. The statute does not apply to federal officials and thus would not be relevant to federal employees of private companies. In general, when it comes to suing federal employees or agencies, the doctrine of "sovereign immunity" often applies, but the 1946 Administrative Procedure Act amended it in the way of employment law by allowing claims specifically against the United States for employees who allege discrimination in a number of areas. Because most people are employed by the state, Suing a state does not always require an individual to fall under the ADA’s enforcement mechanisms.