Alden v. Maine: Notes

The Court decided two other sovereign immunity cases the same day that it decided Alden. The votes were identical to the votes in Alden. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) involved a suit filed against Florida for patent infringement. The Court held that Congress could not abrogate state sovereign immunity under its patent powers and that there was insufficient evidence to allow Congress to base the statute on the 14th Amendment.
A companion case, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999), echoed the first case’s holding, and also held that Congress cannot force a state to waive its sovereign immunity as a condition of engaging in conduct that has been regulated by Congress. The Trademark Remedy Clarification Act (TRCA), passed pursuant to the Commerce Clause, subjected states to suits brought under § 43(a) of the Trademark Act of 1946 (Lanham Act) for false and misleading advertising. The Court overruled Parden v. Terminal R. of Ala. Docks Dept. (1964), which had recognized such an implied waiver.
Kimel v. Florida Board of Regents (2000) extended Alden immunity to claims brought in state court pursuant to the federal Age Discrimination in Employment Act (ADEA). The votes were identical to the votes in Alden. Similar to the Florida Prepaid cases, the Court held that the ADEA’s attempt to overcome state sovereign immunity could not be based on the Commerce Clause. Furthermore, the Court held that the ADEA’s attempt to overcome state sovereign immunity could not be based on the 14th Amendment, since the Equal Protection Clause provides only minimal protection to persons suffering discrimination on the basis of age.
The polarity of views on this issue has become marked. Justice O’Connor, writing for the majority in Kimel, stated:
In Alden, we explained that, “[a]lthough the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design.” . . . For purposes of today’s decision, it is sufficient to note that we have on more than one occasion explained the substantial reasons for adhering to that constitutional design. . . . Indeed, the present dissenters’ refusal to accept the validity and natural import of decisions like Hans, rendered over a full century ago by this Court, makes it difficult to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution. . . . Today we adhere to our holding in Seminole Tribe: Congress’ powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals.

Justice Stevens, in an opinion joined by the other three dissenters, replied:

I remain convinced that Union Gas was correctly decided and that the decision of five Justices in Seminole Tribe to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent. [Federalism] is perverted when invoked to rely on sovereign immunity as a defense to deliberate violations of settled federal law. Further, Seminole Tribe is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Court’s decision today and in the equally misguided opinion of Alden v. Maine (1999). … The kind of judicial activism manifested in [these] cases . . . represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.
In Board of Trustees of the University of Alabama v. Garrett (2001), the Court considered a suit filed in federal court against a state claiming a violation of the Americans with Disabilities Act (ADA). The act prohibits discrimination in employment against a qualified person who has a disability. Patricia Garrett, a registered nurse, had been employed by the University of Alabama. She had been diagnosed with breast cancer, took substantial leave from work, was treated, and returned to work. On returning to work she was told she would have to give up her director’s position, whereupon she took a lower paying job and sued under the ADA in federal court. A closely divided Supreme Court again held that the 11th Amendment barred suits in federal court against a state under any statute based upon the commerce power of Congress.
The Court recognized that Congress could abrogate a state’s 11th Amendment immunity to suit in federal court under the 14th Amendment. The Court held, however, that its decisions established that the disabled received only rational basis protection under the 14th Amendment, a reading that limited the power of Congress. Congress could not expand the scope of the 14th Amendment as interpreted by the Court. It could remedy violations of standards the Court recognized, provided that its remedy was congruent and proportional to the problem. Here the Court found application of the ADA to the states did not meet this test. Congress had made extensive findings of state or local discrimination against the disabled, but the Court found these insufficient to support application of the act to state governments. (Local governments, the Court pointed out, do not enjoy 11th Amendment immunity, so the Court discounted the many instances of local violations cited by Congress.) The Justices continued to divide along the lines established in Alden.
In Federal Maritime Commission v. South Carolina State Ports Authority (2002), the Alden majority again extended the rationale of Alden. The Court held that the sovereign immunity of states reflected by the passage of the 11th Amendment precluded enforcement of federal statutes by individuals against states in administrative courts operated by Article II executive agencies.
In Virginia Central Community College v. Katz (2006), the Court held that a bankruptcy trustee’s proceeding to set aside the debtor’s preferential transfers to state agencies is not barred by sovereign immunity. In a 5–4 decision, the Court concluded that the reasons for the adoption of the Constitution’s Bankruptcy Clause and legislation from the founding era suggested that this Article I power was intended to subordinate state sovereign immunity. In so holding, the Court distinguished congressional power over commerce and patents, which they had recently held must defer to state sovereignty. See Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) (patent power) and Kimel v. Florida Board of Regents (2000) (Commerce Clause).
In Northern Insurance Company of NY v. Chatham County, Ga. (2006), an admiralty case, the Court held that sovereign immunity does not extend to counties and municipalities, even when they are exercising power delegated by the State, if they do not qualify as an “arm of the State” for 11th Amendment purposes. The Court determined that only the state’s sovereign immunity survived the ratification of the Constitution.

Note: Virginia Office for Protection and Advocacy v. Stewart (2011)

The Supreme Court considered the scope of Ex parte Young (1908) in Virginia Office for Protection and Advocacy v. Stewart (2011). Virginia accepted federal funds to improve services for individuals with developmental disabilities. As a condition to that funding, Virginia had to establish a protection and advocacy (P&A) system. Instead of a private non-profit entity, Virginia appointed a state agency as the P&A system, the Virginia Office for Protection and Advocacy (VOPA). When VOPA investigated the deaths of two mental hospital patients, state officials in charge of the hospital refused to produce any records. VOPA then brought suit against the officials demanding declaratory and injunctive relief. State officials moved to dismiss the suit because of the sovereign immunity principles in the Eleventh Amendment.

In a 6-2 decision (Justice Kagan recused herself from the case) written by Justice Scalia and joined by Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, the Supreme Court held that “Ex parte Young (1908) allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state.” The majority reasoned that “there is no warrant in our cases for making the validity of an Ex parte Young action turn on the identity of the plaintiff.” Whether a private actor or state agency sued the state, it suffered a similar indignity. Furthermore, the entire situation “is a consequence of Virginia’s own decision to establish a public, rather than a private P&A system.” Thus, the Court ruled that

In Verizon Md. Inc. v. Public Serv. Comm’n of Md. (2002), we held that “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a 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.’ ” … VOPA’s suit satisfies that straightforward inquiry. It alleges that respondents’ refusal to produce the requested medical records violates federal law; and it seeks an injunction requiring the production of the records, which would prospectively abate the alleged violation.

Although there was a lack of historical precedent for a state agency to sue state officials, the Court concluded that “the Eleventh Amendment presents no obstacle to VOPA’s ability to invoke federal jurisdiction on the same terms as any other litigant.”

Justices Kennedy and Thomas concurred, emphasizing that VOPA’s interest in the records outweighs the state’s interest in dignity and respect.

Justices Roberts (C.J.) and Alito dissented, finding the majority opinion to be “a substantial and novel expansion of what we have also called ‘a narrow exception’ to a State’s sovereign immunity….” They reason that the state suffers compounded indignity because “[w]hatever the decision in the litigation, one thing is clear: The Commonwealth will win. And the Commonwealth will lose.”

Note: Sossamon v. Texas (2011)

In a second sovereign immunity case decided during the 2011 term, Sassamon v. Texas (2011), the issue was “whether the States, by accepting federal funds, consent to waive their sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).” RLUIPA provided that “ ‘[n]o government shall impose a substantial burden on the religious exercise’ of an institutionalized person” unless it was the least restrictive means of furthering a compelling governmental interest. The statute also provided an express cause of action stating “[a] person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”

Harvey Sossamon, an inmate in a Texas correctional institution, was prevented from attending religious services while on cell restriction and was barred from using the prison chapel for religious worship. He claimed these policies violated RLUIPA and he sought injunctive and monetary relief from the state.

A state may choose to waive its sovereign immunity. However, “[a] State’s consent to suit must be ‘unequivocally expressed’ in the text of the relevant statute.” In a 6-2 decision (Justice Kagan recused herself from the case) written by Justice Thomas, and joined by Justices Roberts (C.J.), Scalia, Kennedy, Ginsburg, and Alito, the Court held that RLUIPA’s “appropriate relief” language was not an unequivocal expression of a state waiving its sovereign immunity. Instead, the terms “appropriate relief” were “open-ended and ambiguous about what types of relief it includes” and were “inherently context-dependent.” Thus, the Court concluded that “appropriate relief” did not encompass suits involving monetary relief against a state under the RLUIPA. Justice Thomas wrote

the phrase “appropriate relief” in RLUIPA is not so free from ambiguity that we may conclude that the States, by receiving federal funds, have unequivocally expressed intent to waive their sovereign immunity to suits for damages. Strictly construing that phrase in favor of the sovereign—as we must, see Lane v. Pena (1996)—we conclude that it does not include suits for damages against a State.

Additionally, the Court ruled against the contention that Spending Clause legislation operated as a contract for which damages are always available. The Court reasoned that

Sossamon’s implied-contract-remedies proposal cannot be squared with our longstanding rule that a waiver of sovereign immunity must be expressly and unequivocally stated in the text of the relevant statute. It would be bizarre to create an “unequivocal statement” rule and then find that every Spending Clause enactment, no matter what its text, satisfies the rule because it includes unexpressed, implied remedies against the States.

Justices Sotomayor and Breyer dissented. They recognized that a state may waive its sovereign immunity by “unequivocally consent[ing] to suit in federal court.” Here, the dissent suggested that

[t]here is…no dispute that RLUIPA clearly conditions a State’s receipt of federal funding on its consent to suit for violations of the statute’s substantive provisions. The statute states that “program[s] or activit[ies] that receiv[e] Federal financial assistance” may not impose a “substantial burden on the religious exercise of a person residing in or confined to an institution.” When such a burden has been imposed, the victim “may assert a violation of [RLUIPA] as a claim…in a judicial proceeding and obtain appropriate relief against a government,” which the statute defines, as relevant, as “a State, county, municipality, or other governmental entity created under the authority of a State.” Accordingly, it is evident that Texas had notice that, in accepting federal funds, it waived its sovereign immunity to suit by institutionalized persons upon whom it has imposed an unlawful substantial burden.

Furthermore, “[u]nder general remedies principles, the usual remedy for a violation of a legal right is damages. Consistent with these principles our precedents make clear that the phrase ‘appropriate relief’ includes monetary relief.” Thus, the dissent found that by accepting the federal funds, the state waived its sovereign immunity to RLUIPA suits seeking monetary relief.

The dissent feared that the majority’s reading “severely undermines Congress’ unmistakably stated intent in passing the statute: to afford ‘broad protection of religious exercise, to the maximum extent permitted by the terms of [the statute] and the Constitution.’ ” In the future, “Congress must…itemize in the statutory text every type of relief meant to be available against sovereign defendants.”