OCTOBER TERM, 2001
Syllabus
VERIZON MARYLAND INC.
v. PUBLIC SERVICE COMMISSION OF
MARYLAND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No.00-1531. Argued December 5, 2001-Decided May 20, 2002*
The Telecommunications Act of 1996 (Act) requires that incumbent
localexchange carriers (LECs) "provide ... interconnection with"
their existing networks when a new entrant seeks access to a
market, 47 U. S. C. § 251(c)(2); that the carriers then establish
"reciprocal compensation arrangements" for transporting and
terminating the calls of each others' customers, § 251(b)(5); and
that their interconnection agreements be submitted to a state
utility commission for approval, § 252(e)(1). Petitioner Verizon
Maryland Inc., the incumbent LEC in Maryland, negotiated an
interconnection agreement with a competitor later acquired by
respondent MCI World Com, Inc. After the Maryland Public Service
Commission (Commission) approved the agreement, Verizon informed
World Com that it would no longer pay reciprocal compensation for
calls made by Verizon's customers to the local access numbers of
Internet Service Providers (ISPs) because ISP traffic was not
"local traffic" subject to the reciprocal compensation agreement.
World Com filed a complaint with the Commission, which ordered
Verizon to make the payments for past and future ISP-bound calls.
Verizon then filed an action in Federal District Court, citing §
252(e)(6) and 28 U. S. C. § 1331 as the basis for jurisdiction, and
naming as defendants the Commission, its individual members in
their official capacities, World Com, and other competing LECs.
Verizon sought a declaratory judgment that the order was unlawful
and an injunction prohibiting its enforcement, alleging that the
determination that Verizon must pay reciprocal compensation for ISP
traffic violated the 1996 Act and a Federal Communications
Commission ruling. The District Court dismissed the action. The
Fourth Circuit affirmed, holding that the Commission had not waived
its Eleventh Amendment immunity from suit; that the doctrine of
Ex parte Young, 209 U. S. 123, does not
permit suit against the individual commissioners in their official
capacities; and that neither § 252(e)(6) nor § 1331 provides a
basis for jurisdiction over Verizon's claims against the private
defendants.
*Together with No. 00-1711,
United States v.
Public
Service Commission of Maryland et al., also on certiorari to
the same court.
636
636 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
Syllabus
Held:
1. Section 1331 provides a basis for jurisdiction over Verizon's
claim that the Commission's order requiring reciprocal compensation
for ISPbound calls is pre-empted by federal law. Federal courts
have jurisdiction under § 1331 where the petitioner's right to
recover will be sustained if federal law is given one construction
and will be defeated if it is given another, unless the claim
clearly appears to be immaterial and made solely to obtain
jurisdiction, or is wholly insubstantial and frivolous.
Steel
CO. V.
Citizens for Better Environment, 523 U. S. 83, 89. Here,
resolution of Verizon's claim turns on whether the Act, or an FCC
ruling, precludes the Commission from ordering payment of
reciprocal compensation, and there is no suggestion that the claim
is immaterial or insubstantial and frivolous. Even if § 252(e)(6)
(which provides that a party aggrieved by a state commission's
determination under § 252 may bring a federal action to determine
whether an interconnection agreement meets the requirements of
§§251 and 252) does not confer jurisdiction, it does not divest the
district courts of their authority under § 1331. Cf.
Abbott
Laboratories V.
Gardner, 387 U. S. 136, 141.
Section 252 does not establish a distinctive review mechanism for
the commission actions that it covers, and it does not
distinctively limit the substantive relief available. Finally, none
of the Act's other provisions evince any intent to preclude federal
review of a commission determination. Pp. 641-644.
2. The doctrine of
Ex parte Young permits Verizon's suit
to go forward against the state commissioners in their official
capacities. The Court thus need not decide whether the Commission
waived its immunity from suit by voluntarily participating in the
regulatory regime established by the Act. In determining whether
the
Ex parte Young doctrine 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.
Idaho V.
Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 296,
298-299. Here, Verizon's prayer for injunctive relief-that state
officials be restrained from enforcing an order in contravention of
controlling federal law-clearly satisfies our "straightforward
inquiry." As for Verizon's prayer for declaratory relief, even
though Verizon seeks a declaration of the past, as well as the
future, ineffectiveness of the Commission's action, so that the
private parties' past financial liability may be affected, no past
liability of the State, or of any of its commissioners, is at
issue, see
Edelman V.
Jordan, 415 U. S. 651, 668. The
Fourth Circuit's suggestion that the doctrine of
Ex parte
Young is inapplicable because the Commission's order was
probably not inconsistent with federal law is unavailing: The
inquiry into whether suit lies
637
under
Ex parte Young does not include an analysis of the
merits of the claim, see
Coeur d'Alene, supra, at 281. Nor
is there any merit to the Commission's argument that § 252(e)(6)
constitutes a detailed and exclusive remedial scheme like the one
held in
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 75, to
implicitly exclude
Ex parte Young actions. Pp. 645-648.
240 F.3d
279, vacated and remanded.
SCALIA, J., delivered the opinion of the Court, in which all
other Members joined, except O'CONNOR, J., who took no part in the
consideration or decision of the cases. KENNEDY, J., filed a
concurring opinion,
post, p. 648. SOUTER, J., filed a
concurring opinion, in which GINSBURG and BREYER, JJ., joined,
post, p. 649.
Mark L. Evans argued the cause for petitioner Verizon Maryland
Inc. With him on the briefs were Michael K. Kellogg, Sean A. Lev,
Aaron M. Panner, William P. Barr, Mark
J. Mathis, Michael D.
Lowe, and David A. Hill. Barbara McDowell argued the cause for the
United States. With her on the briefs were Solicitor General Olson,
Acting Assistant Attorney General Katsas, Deputy Solicitor General
Wallace, Mark B. Stern, Charles W Scarborough, and John A.
Rogovin.
Susan Stevens Miller argued the cause and filed a brief for
respondent Public Service Commission of Maryland. Paul M. Smith,
William M. Hohengarten, Michael B. DeSanctis, Darryl M. Bradford,
John
J. Hamill, Thomas F. O'Neil III, William Single IV, and
Brian J. Leske filed briefs for respondent MCI WorldCom, Inc., et
al. t
tLesley Szanto Friedman, Aidan Synnott, Martha F. Davis,
Isabelle Katz Pinzler, Steven R. Shapiro, Karen K. Narasaki,
Vincent A. Eng, Herbert Semmel, Marcia D. Greenberger, Dina R.
Lassow, and Elliot M. Mincberg filed a brief for the NOW Legal
Defense and Education Fund et al. as amici curiae urging
reversal.
Briefs of
amici curiae urging affirmance were filed for
the State of Illinois by
James E. Ryan, Attorney General,
Joel D. Bertocchi, Solicitor General,
A. Benjamin
Goldgar and
Michael P. Doyle, Assistant Attorneys
General,
Myra L. Karegianes, John P. Kelliher, and
Thomas
R. Stan-
638
638 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
JUSTICE SCALIA delivered the opinion of the Court.
These cases present the question whether federal district courts
have jurisdiction over a telecommunication carrier's claim that the
order of a state utility commission requiring reciprocal
compensation for telephone calls to Internet Service Providers
violates federal law.
I
The Telecommunications Act of 1996 (1996 Act or Act), Pub. L.
104-104, 110 Stat. 56, created a new telecommunications regime
designed to foster competition in local telephone markets. Toward
that end, the Act imposed various obligations on incumbent
local-exchange carriers (LECs), including a duty to share their
networks with competitors. See 47 U. S. C. §251(c) (1994 ed., Supp.
V). When a new entrant seeks access to a market, the incumbent LEC
must "provide ... interconnection with" the incumbent's existing
network, § 251(c)(2), and the carriers must then establish
"reciprocal compensation arrangements" for transporting and
terminating the calls placed by each others' customers, §
251(b)(5). As we have previously described, see
AT&T
Corp. v.
Iowa Utilities Bd., 525 U. S. 366, 371-373
(1999), an incumbent LEC "may negotiate and enter into a binding
agreement" with the new entrant "to fulfill the duties" imposed by
§§ 251(b) and (c), but "without regard to the standards set forth"
in those provisions. §§ 252(a)(1),
ton; and for the Virginia State Corporation Commission by
William H. Chambliss.
[REPORTER'S NOTE: On January 22, 2002, 534 U. S. 1110, the Court
granted the motion of TCG Maryland, Inc., to treat the brief for
AT&T Communications of Illinois, Inc., et al., in
Mathis
V.
World Com Technologies, Inc., post, p. 682, as the brief
for respondent TCG Maryland, Inc., in these cases.
On January 7, 2002, 534 U. S. 1076, and February 19, 2002, 534
U. S. 1124, the Court granted the motions of
amici curiae
filers in
Mathis V.
WorldCom Technologies, Inc.,
supra, to have their
amici curiae briefs considered as
briefs
amici curiae in these cases.]
639
251(c)(1). That agreement must be submitted to the state
commission for approval, § 252(e)(1), which may reject it if it
discriminates against a carrier not a party or is not consistent
with "the public interest, convenience, and necessity," §
252(e)(2)(A).
As required by the Act, the incumbent LEC in Maryland,
petitioner Verizon Maryland Inc., formerly known as Bell Atlantic
Maryland, Inc., negotiated an interconnection agreement with
competitors, including MFS Intelenet of Maryland, later acquired by
respondent MCI WorldCom, Inc. The Maryland Public Service
Commission (Commission) approved the agreement. Six months later,
Verizon informed World Com that it would no longer pay reciprocal
compensation for telephone calls made by Verizon's customers to the
local access numbers of Internet Service Providers (ISPs), claiming
that ISP traffic was not "local traffic" 1 subject to the
reciprocal compensation agreement because ISPs connect customers to
distant Web sites. WorldCom disputed Verizon's claim and filed a
complaint with the Commission. The Commission found in favor of
WorldCom, ordering Verizon "to timely forward all future
interconnection payments owed [World Com] for telephone calls
placed to an ISP" and to pay WorldCom any reciprocal compensation
that it had withheld pending resolution of the dispute. Verizon
appealed to a Maryland state court, which affirmed the order.
1 Section 1.61 of the interconnection agreement provides:
"'Reciprocal Compensation' is As Described in the Act, and refers
to the payment arrangements that recover costs incurred for the
transport and termination of Local Traffic originating on one
Party's network and terminating on the other Party's network." In
turn, § 1.44 defines" 'Local Traffic'" as "traffic that is
originated by a Customer of one Party on that Party's network and
terminates to a Customer of the other Party on that other Party's
network, within a given local calling area, or expanded area
service ('EAS') area, as defined in [Bell Atlantic's] effective
Customer tariffs. Local Traffic does not include traffic originated
or terminated by a commercial mobile radio service carrier."
640
640 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
Subsequently, the Federal Communications Commission (FCC) issued
a ruling-later vacated by the Court of Appeals for the District of
Columbia Circuit, see
Bell Atlantic Tel. Coso v.
FCC,
206 F.3d
1 (2000)-which categorized ISPbound calls as nonlocal for
purposes of reciprocal compensation but concluded that, absent a
federal compensation mechanism for those calls, state commissions
could construe interconnection agreements as requiring reciprocal
compensation. Verizon filed a new complaint with the Commission,
arguing that the FCC ruling established that Verizon was no longer
required to provide reciprocal compensation for ISP traffic. In a
3-to-2 decision, the Commission rejected this contention,
concluding that, as a matter of state contract law, WorldCom and
Verizon had agreed to treat ISP-bound calls as local traffic
subject to reciprocal compensation.
Verizon filed an action in the United States District Court for
the District of Maryland, citing 47 U. S. C. §252(e)(6) and 28 U.
S. C. § 1331 as the basis for jurisdiction, and naming as
defendants the Commission, its individual members in their official
capacities, WorldCom, and other competing LECs. In its complaint,
Verizon sought declaratory and injunctive relief from the
Commission's order, alleging that the determination that Verizon
must pay reciprocal compensation to World Com for ISP traffic
violated the 1996 Act and the FCC ruling.
The District Court dismissed the action, and a divided panel of
the Court of Appeals for the Fourth Circuit affirmed.
240 F.3d
279 (2001). The Fourth Circuit held that the Commission had not
waived its immunity from suit by voluntarily participating in the
regulatory scheme set up under the 1996 Act, and that the doctrine
of
Ex parte Young, 209 U. S. 123 (1908),
does not permit suit against the individual commissioners in their
official capacities. It then held that neither 47 U. S. C. §
252(e)(6) nor 28 U. S. C. § 1331 provides a basis for jurisdiction
over Verizon's claims against the private defendants. Both Verizon
and the United
641
States, an intervenor below, petitioned this Court for review of
the four questions resolved by the Fourth Circuit. Because we had
previously granted certiorari in
Mathias v.
WorldCom
Technologies, Inc., 532 U. S. 903 (2001), which raised all but
the question whether § 1331 provides a basis for jurisdiction, we
granted certiorari only on the § 1331 question and set the case for
oral argument in tandem with
Mathias. 533 U. S. 928 (2001).
After oral argument, for reasons explained in our decision in
Mathias released today,
post, p. 682, we granted
certiorari on the remaining three questions presented in these
cases. 534 U. S. 1072 (2001).
II
WorldCom, Verizon, and the United States contend that 47 U. S.
C. § 252(e)(6) and 28 U. S. C. § 1331 independently grant federal
courts subject-matter jurisdiction to determine whether the
Commission's order requiring that Verizon pay World Com reciprocal
compensation for ISP-bound calls violates the 1996 Act. Section 252
sets forth procedures relating to formation and commission approval
of interconnection agreements, and commission approval and
continuing review of interconnection terms and conditions (called
"[s]tatements of generally available terms," § 252(f)) filed by
LECs. Section 252(e)(6) provides, in relevant part:
"In any case in which a State commission makes a determination
under this section, any party aggrieved by such determination may
bring an action in an appropriate Federal district court to
determine whether the agreement or statement meets the requirements
of section 251 of this title and this section." The determination
at issue here is neither the approval or disapproval of a
negotiated agreement nor the approval or disapproval of a statement
of generally available terms. WorldCom, Verizon, and the United
States argue, however, that a state commission's authority under §
252 implicitly encompasses the authority to interpret and enforce
an interconnection agreement that the commission has ap-
642
642 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
proved,2 and that an interpretation or enforcement decision is
therefore a "determination under [§ 252]" subject to federal
review. Whether the text of § 252(e)(6) can be so construed is a
question we need not decide. For we agree with the parties'
alternative contention, that even if § 252(e)(6) does not
confer jurisdiction, it at least does not
divest the
district courts of their authority under 28 U. S. C. § 1331 to
review the Commission's order for compliance with federal law.
Verizon alleged in its complaint that the Commission violated
the Act and the FCC ruling when it ordered payment of reciprocal
compensation for ISP-bound calls. Verizon sought a declaratory
judgment that the Commission's order was unlawful, and an
injunction prohibiting its enforcement. We have no doubt that
federal courts have jurisdiction under § 1331 to entertain such a
suit. Verizon seeks relief from the Commission's order "on the
ground that such regulation is pre-empted by a federal statute
which, by virtue of the Supremacy Clause of the Constitution, must
prevail," and its claim "thus presents a federal question which the
federal courts have jurisdiction under 28 U. S. C. § 1331 to
resolve."
Shaw v.
Delta Air Lines, Inc., 463 U. S. 85, 96, n. 14
(1983).
The Commission contends that since the Act does not create a
private cause of action to challenge the Commission's order, there
is no jurisdiction to entertain such a suit. We need express no
opinion on the premise of this argument. "It is firmly established
in our cases that the absence of a
2 The Fourth Circuit suggested that both Maryland law and the
Federal Communications Act of 1934 grant the Commission authority
to interpret and enforce interconnection agreements that it
approves under § 252.
240 F.3d
279, 304 (2001) (citing 47 U. S. C. § 152(b), and Md. Pub.
Util. COSo Code Ann. §2-113 (1998)). The parties dispute whether it
is in fact federal or state law that confers this authority, but no
party contends that the Commission lacked jurisdiction to interpret
and enforce the agreement.
643
valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.
e., the courts'
statutory or constitutional
power to adjudicate the case."
Steel Co. v.
Citizens for Better Environment,
523 U. S. 83, 89
(1998). As we have said, "the district court has jurisdiction if
'the right of the petitioners to recover under their complaint will
be sustained if the Constitution and laws of the United States are
given one construction and will be defeated if they are given
another,' unless the claim 'clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or where such
a claim is wholly insubstantial and frivolous.'"
Ibid.
(citations omitted). Here, resolution of Verizon's claim turns on
whether the Act, or an FCC ruling issued thereunder, precludes the
Commission from ordering payment of reciprocal compensation, and
there is no suggestion that Verizon's claim is "'immaterial''' or
"'wholly insubstantial and frivolous.'"
Ibid.
Verizon's claim thus falls within 28 U. S. C. § 1331's general
grant of jurisdiction, and contrary to the Fourth Circuit's
conclusion, nothing in 47 U. S. C. § 252(e)(6) purports to strip
this jurisdiction. Section 252(e)(6) provides for federal review of
an agreement when a state commission "makes a determination under
[§ 252]." If this does not include (as WorldCom, Verizon, and the
United States claim it does) the interpretation or enforcement of
an interconnection agreement, then § 252(e)(6) merely makes
some
other actions by state commissions reviewable in federal court.
This is not enough to eliminate jurisdiction under § 1331. Although
the situation is not precisely parallel (in that here the
elimination of federal district-court review would not amount to
the elimination of all review), we think what we said in
Abbott
Laboratories v.
Gardner, 387 U. S. 136, 141
(1967), is nonetheless apt: "The mere fact that some acts are made
reviewable should not suffice to support an implication of
exclusion as to others." (Internal quotation marks and citation
omitted.) And here there is nothing more than that
644
644 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
mere fact. Section 252 does not establish a distinctive review
mechanism for the commission actions that it covers (the mechanism
is the same as § 1331: district-court review), and it does not
distinctively limit the substantive relief available. Cf.
United
States v.
Fausto, 484 U. S. 439, 448-449
(1988). Indeed, it does not even mention subject-matter
jurisdiction, but reads like the conferral of a private right of
action ("[A]ny party aggrieved by such determination may bring an
action in an appropriate Federal district court," § 252(e)(6)). Cf.
Steel Co., supra, at 90-91 (even a statutory provision that
uses the word "jurisdiction" may not relate to "subject-matter
jurisdiction"); see also
Davis v.
Passman, 442 U. S. 228, 239, n. 18
(1979).
And finally, none of the other provisions of the Act evince any
intent to preclude federal review of a commission determination. If
anything, they reinforce the conclusion that § 252(e)(6)'s silence
on the subject leaves the jurisdictional grant of § 1331 untouched.
For where otherwise applicable jurisdiction was meant to be
excluded, it was excluded expressly. Section 252(e)(4) provides:
"No State court shall have jurisdiction to review the action of a
State commission in approving or rejecting an agreement under this
section." In sum, nothing in the Act displays any intent to
withdraw federal jurisdiction under § 1331; we will not presume
that the statute means what it neither says nor fairly
implies.3
3 The Commission also suggests that the
Rooker-Feldman
doctrine precludes a federal district court from exercising
jurisdiction over Verizon's claim. See
District of Columbia
Court of Appeals V.
Feldman, 460 U. S. 462 (1983);
Rooker V.
Fidelity Trust Co., 263 U. S. 413 (1923). The
Rooker-Feldman doctrine merely recognizes that 28 U. S. C. §
1331 is a grant of original jurisdiction, and does not authorize
district courts to exercise appellate jurisdiction over state-court
judgments, which Congress has reserved to this Court, see §
1257(a). The doctrine has no application to judicial review of
executive action, including determinations made by a state
administrative agency.
645
III
The Commission nonetheless contends that the Eleventh Amendment
bars Verizon's claim against it and its individual commissioners.
WorldCom, Verizon, and the United States counter that the
Commission is subject to suit because it voluntarily participated
in the regulatory regime established by the Act. Whether the
Commission waived its immunity is another question we need not
decide, because-as the same parties also argue-even absent waiver,
Verizon may proceed against the individual commissioners in their
official capacities, pursuant to the doctrine of
Ex parte Young,
209 U. S. 123 (1908).
In 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."
Idaho v.
Coeur d'Alene
Tribe of Idaho, 521 U. S. 261, 296 (1997)
(O'CONNOR, J., joined by SCALIA and THOMAS, JJ., concurring in part
and concurring in judgment); see also
id., at 298-299
(SOUTER, J., joined by STEVENS, GINSBURG, and BREYER, JJ.,
dissenting). Here Verizon sought injunctive and declaratory relief,
alleging that the Commission's order requiring payment of
reciprocal compensation was preempted by the 1996 Act and an FCC
ruling. The prayer for injunctive relief-that state officials be
restrained from enforcing an order in contravention of controlling
federal law-clearly satisfies our "straightforward inquiry." We
have approved injunction suits against state regulatory
commissioners in like contexts. See,
e. g., Prentis v.
Atlantic Coast Line Co., 211 U. S. 210, 230 (1908)
("[W]hen the rate is fixed a bill against the commission to
restrain the members from enforcing it will not be bad ... as a
suit against a State, and will be the proper form of remedy");
Alabama Pub. Servo Comm'n v.
Southern R. Co.,
341 U. S. 341,
344, n. 4
646
646 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
(1951); McNeill v.
Southern R. Co., 202 U. S. 543 (1906);
Smyth v.
Ames, 169 U. S. 466 (1898);
Reagan v.
Farmers' Loan &
Trust Co.,
154 U. S. 362
(1894). Indeed,
Ex parte Young itself was a suit against
state officials (including state utility commissioners, though only
the state attorney general appealed) to enjoin enforcement of a
railroad commission's order requiring a reduction in rates. 209 U.
S., at 129. As for Verizon's prayer for declaratory relief: That,
to be sure, seeks a declaration of the
past, as well as the
future, ineffectiveness of the Commission's action, so that
the past financial liability of private parties may be affected.
But no past liability of the State, or of any of its commissioners,
is at issue. It does not impose
upon the State "a monetary
loss resulting from a past breach of a legal duty on the part of
the defendant state officials."
Edelman v.
Jordan,
415 U. S. 651, 668 (1974). Insofar as the exposure of the State
is concerned, the prayer for declaratory relief adds nothing to the
prayer for injunction.
The Fourth Circuit suggested that Verizon's claim could not be
brought under
Ex parte Young, because the Commission's order
was probably
not inconsistent with federal law after all.
240 F. 3d, at 295-297. The court noted that the FCC ruling relied
upon by Verizon does not seem to require compensation for ISP
traffic; that the Court of Appeals for the District of Columbia
Circuit has vacated the ruling; and that the Commission interpreted
the interconnection agreement under state contract-law principles.
It may (or may not) be true that the FCC's since-vacated ruling
does not support Verizon's claim; it may (or may not) also be true
that state contract law, and not federal law as Verizon contends,
applies to disputes regarding the interpretation of Verizon's
agreement. But the inquiry into whether suit lies under
Ex parte
Young does not include an analysis of the merits of the claim.
See
Coeur d'Alene, supra, at 281 ("An
allegation of
an ongoing violation of federal law ... is ordinarily sufficient"
(emphasis added)).
647
Nor does the 1996 Act display any intent to foreclose
jurisdiction under
Ex parte Young-as we concluded the Indian
Gaming Regulatory Act did in
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44 (1996). There an Indian Tribe sued the State of Florida
for violating a duty to negotiate imposed under that Act, 25 U. S.
C. § 2710(d)(3). Congress had specified the means to enforce that
duty in § 2710(d)(7), a provision "intended ... not only to define,
but also to limit significantly, the duty imposed by § 2710(d)(3)."
517 U. S., at 74. The "intricate procedures set forth in that
provision" prescribed that a court could issue an order directing
the State to negotiate, that it could require the State to submit
to mediation, and that it could order that the Secretary of the
Interior be notified.
Id., at 74-75. We concluded that "this
quite modest set of sanctions" displayed an intent not to provide
the "more complete and more immediate relief" that would otherwise
be available under
Ex parte Young. 517 U. S., at 75.
Permitting suit under
Ex parte Young was thus inconsistent
with the "detailed remedial scheme," 517 U. S., at 74-and the
limited one-that Congress had prescribed to enforce the State's
statutory duty to negotiate. The Commission's argument that §
252(e)(6) constitutes a detailed and exclusive remedial scheme like
the one in
Seminole Tribe, implicitly excluding
Ex parte
Young actions, is without merit. That section provides only
that when state commissions make certain "determinations," an
aggrieved party may bring suit in federal court to establish
compliance with the requirements of §§ 251 and 252. Even with
regard to the "determinations" that it covers, it places no
restriction on the relief a court can award. And it does not even
say whom the suit is to be brought against-the state commission,
the individual commissioners, or the carriers benefiting from the
state commission's order. The mere fact that Congress has
authorized federal courts to review whether the Commission's action
complies with §§ 251 and 252 does not without more "impose upon the
State a liabil-
648
648 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
KENNEDY, J., concurring
ity that is significantly more limited than would be the
liability imposed upon the state officer under
Ex parte Young."
Seminole Tribe, supra, at 75-76.
***
We conclude that 28 U. S. C. § 1331 provides a basis for
jurisdiction over Verizon's claim that the Commission's order
requiring reciprocal compensation for ISP-bound calls is pre-empted
by federal law. We also conclude that the doctrine of
Ex parte
Young permits Verizon's suit to go forward against the state
commissioners in their official capacities. We vacate the judgment
of the Court of Appeals and remand these cases for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR took no part in the consideration or decision
of these cases.
JUSTICE KENNEDY, concurring.
For the reasons well stated by the Court, I agree Verizon
Maryland Inc. may proceed against the state commissioners in their
official capacity under the doctrine of
Ex parte Young,
209 U. S. 123
(1908). When the plaintiff seeks to enjoin a state utility
commissioner from enforcing an order alleged to violate federal
law, the Eleventh Amendment poses no bar. See
Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 271 (1997)
(principal opinion of KENNEDY, J., joined by REHNQUIST, C. J.).
This is unlike the case in
Idaho v.
Coeur d'Alene
Tribe of Idaho, supra, where the plaintiffs tried to use
Ex
parte Young to divest a State of sovereignty over territory
within its boundaries. In such a case, a" 'straightforward
inquiry,'" which the Court endorses here,
ante, at 645,
proves more complex. In
Coeur d'Alene seven Members of this
Court described
Ex parte Young as requiring nothing more
than an allegation of an ongoing violation of federal law and a
649
request for prospective relief; they divided four to three,
however, over whether that deceptively simple test had been
met.
In my view, our
Ex parte Young jurisprudence requires
careful consideration of the sovereign interests of the State as
well as the obligations of state officials to respect the supremacy
of federal law. See
Coeur d'Alene, supra, at 267-280
(principal opinion of KENNEDY, J., joined by REHNQUIST, C. J.). I
believe this approach, whether stated in express terms or not, is
the path followed in
Coeur d'Alene as well as in the many
cases preceding it. I also believe it necessary. Were it otherwise,
the Eleventh Amendment, and not
Ex parte Young, would become
the legal fiction.
The complaint in this litigation, however, parallels the very
suit permitted by
Ex parte Young itself. With this brief
explanation, I join the opinion of the Court.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, concurring.
I join the Court's opinion, Part III of which rests on a ground
all of us can agree upon: 1 on the assumption of an Eleventh
Amendment2 bar, relief is available under the doctrine of
Ex
parte Young, 209
U. S. 123 (1908). Although that assumption apparently has been
made from the start of the litigation, I think it is open to some
doubt and so write separately to question whether these cases even
implicate the Eleventh Amendment.
1 In so doing, I set aside for the moment my continuing
conviction that the interpretation of the Eleventh Amendment that a
majority of this Court has embraced is fundamentally mistaken. See
Alden v.
Maine, 527 U. S. 706, 760 (1999)
(dissenting opinion);
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44, 100 (1996) (dissenting opinion).
2 "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." U. S.
Const., Arndt. 11.
650
650 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
SOUTER, J., concurring
While the State of Maryland is the named defendant, it is only a
nominal one. Verizon Maryland Inc., the private party "suing" it,
does not seek money damages, or the sort of declaratory or
injunctive relief that could be had against a private litigant.3
Nor does Verizon seek an order enjoining the State from enforcing
purely state-law rate orders of dubious constitutionality, the
relief requested in
Ex parte Young itself,
id., at
129-131. Instead, Verizon claims that the Maryland Public Service
Commission has wrongly decided a question of federal law4 under a
decisional power conferred by the Telecommunications Act of 1996
(Act), a power that no person may wield. Verizon accordingly seeks
not a simple order of relief running against the state commission,
but a different adjudication of a federal question
3 Cf.
e. g., Board of Trustees of Univ. of Ala. V.
Garrett, 531
U. S. 356, 360 (2001) (money damages from the State as employer
under Title I of the Americans with Disabilities Act of 1990);
Kimel V.
Florida Bd. of Regents, 528 U. S. 62, 66 (2000)
(money damages from the State as employer under the Age
Discrimination in Employment Act of 1967);
Alden V.
Maine, supra, at 712 (money damages from the State as
employer under the Fair Labor Standards Act of 1938 in state
court);
Florida Prepaid Postsecondary Ed. Expense Bd. V.
College Savings Bank, 527 U. S. 627, 633 (1999)
(money damages and injunctive and declaratory relief against a
State for patent infringement);
College Savings Bank V.
Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 671 (1999)
(same for trademark violations);
Seminole Tribe, supra, at
47 (suit to compel State to negotiate in good faith);
Hans
V.
Louisiana, 134 U. S. 1 (1890) (money
damages for failure to honor state securities). In
Seminole
Tribe, a majority of this Court observed "that the relief
sought by a plaintiff suing a State is irrelevant to the question
whether the suit is barred by the Eleventh Amendment," 517 U. S.,
at 58, but this was said in the context of a suit for injunctive
relief (to enforce a duty to negotiate) as opposed to money
damages. My point is that conventional relief of both sorts (and
declaratory relief) is different in kind from the judicial review
of agency action sought in these cases.
4 Whether the interpretation of a reciprocal-compensation
provision in a privately negotiated interconnection agreement
presents a federal issue is a different question which neither the
Court nor I address at the present.
651
by means of appellate review in Federal District Court,5 whose
jurisdiction to entertain the claim of error the Court today has
affirmed. If the District Court should see things Verizon's way and
reverse the state commission
qua federal regulator, what
dishonor would be done to the dignity of the State, which has
accepted congressionally conferred power to decide matters of
federal law in the first instance?
One answer might be that even naming the state commission as a
defendant in a suit for declaratory and injunctive relief in
federal court is an unconstitutional indignity. But I do not see
how this could be right. At least where the suit does not seek to
bar a state authority from applying and enforcing state law, a
request for declaratory or injunctive relief is simply a formality
for obtaining a process of review. Cf. 4 K. Davis, Administrative
Law Treatise 206 (2d ed. 1983) ("[T]he suit for injunction and
declaratory judgment in a district court under 28 U. S. C. § 1331
... is now always available to reach reviewable [federal]
administrative action in absence of a specific statute making some
other remedy exclusive"). And as for the nominal position of a
State as defendant, "[i]t must be regarded as a settled doctrine of
this court ... 'that the question whether a suit is within the
prohibition of the 11th Amendment is not always determined by
reference to the nominal parties on the record.'"
In re
Ayers, 123 U. S.
443, 487 (1887) (alteration in original) (quoting
Poindexter v.
Greenhow, 114 U. S. 270,287
(1885)). If the applicability of the Eleventh Amendment pivots on
the formalism that a State is found on the wrong side of the "v."
in the case name of a regulatory appeal, constitutional immunity
becomes nothing more than an accident of captioning practice in
utility cases reviewed by courts. For that matter, the formal and
nominal position of a governmental body in these circumstances is
not even
5 Judicial review of Federal Communications Commission
determinations under the Act is committed directly to the Courts of
Appeal. 28 U. S. C. § 2342(1); 47 u. S. C. § 402(a) (1994 ed.).
652
652 VERIZON MD. INC.
v. PUBLIC SERVo COMM'N OF MD.
SOUTER, J., concurring
the universal practice. While the regulatory commission is
generally a nominal defendant when a party appeals in the federal
system,6 this is not the uniform practice among the States, several
of which caption utility cases on judicial review in terms of the
appealing utility. 7
The only credible response, which Maryland to its credit
advances, is that the State has a strong interest in any case where
its adjudication of a federal question is challenged.8 See
Supplemental Brief for Respondents MCI WorldCom, Inc., et al.
21-24. An adverse ruling in one appeal can no doubt affect the
state commission's ruling in future cases. But this is true any
time a state court decides a federal question and a successful
appeal is made to this Court, and no one thinks that the Eleventh
Amendment applies in that instance. See
Cohens v.
Virginia, 6 Wheat. 264, 412 (1821) (a writ of error from a
state-court decision is not a "suit" under
6 See 5 U. S. C. §§ 702-703; Fed. Rule App. Proc.
15(a)(2)(B).
7 See, e. g., In re Hawaiian Elec. Co., 81 Haw. 459, 918 P. 2d
561 (1996); In re Petition of Interstate Power Co., 416 N. W. 2d
800 (Minn. Ct. App. 1987); Appeal of Campaign for Ratepayers
Rights, 145 N. H. 671, 766 A. 2d 702 (2001); In re Petition for
Declaratory Ruling of Northwestern Public Servo Co., 560 N. W. 2d
925 (S. D. 1997); In re Citizens Util. Co., 171 Vt. 447, 769 A. 2d
19 (2000).
8 The Fourth Circuit obliquely questioned the strength of the
State's interest, noting that "under Maryland law, it is not
necessary for the State commission, much less the individual
commissioners, to be a party to an appeal for State-court review of
its determinations."
Bell Atlantic Md., Inc. V.
MCI
Worldcom, Inc., 240 F.3d
279, 295 (2001). But while the Maryland statute which the
Fourth Circuit cited, Md. Pub. Util. COSo Code Ann. § 3-204(d)
(1998), does provide that "[t]he Commission may," not must, "be a
party to an appeal," the Maryland courts have specified that the
Public Service Commission is one of certain agencies "'the
functions of which are so identified with the execution of some
definite public policy as the representative of the State, that
their participation in litigation affecting their decisions is
regarded by the Legislature as essential to the adequate protection
of the State's interests.'''
Calvert County Planning Comm'n
V.
Howlin Realty Management, Inc., 364 Md. 301, 315, 772 A.
2d 1209, 1216-1217 (2001) (quoting
Zoning Appeals Board V.
McKinney, 174 Md. 551, 561, 199 A. 540, 545 (1938)).
653
the Eleventh Amendment);
McKesson Corp. v.
Division of
Alcoholic Beverages and Tobacco, Fla. Dept. of Business
Regulation, 496 U.
S. 18, 31 (1990) ("The Eleventh Amendment does not constrain
the appellate jurisdiction of the Supreme Court over cases arising
from state courts") (unanimous Court); cf. U. S. Const., Art. VI
("This Constitution, and the Laws of the United States ... shall be
the supreme Law of the Land").9 Whether an issue comes from a
stateagency or a state-court decision, the federal court is
reviewing the State's determination of a question of federal law,
and it is neither prudent nor natural to see such review as
impugning the dignity of the State or implicating the States'
sovereign immunity in the federal system.
9 A possible ground for distinction is that the Supreme Court
reviews state-court decisions while a federal district court
initially reviews statecommission decisions under the Act. The
argument would be that the Constitution requires any controversy in
which a State's dignitary interests are implicated to be decided by
this Court, and no other federal court, as a sign of respect for
the State's sovereignty. See
Farquhar v.
Georgia
(C. C. D. Ga. 1791) (Iredell, J.), reprinted in 5
Documentary History of the Supreme Court of the United States,
1789-1800, pp. 148-154 (M. Marcus ed. 1994) ("It may also fairly be
presumed that the several States thought it important to stipulate
that so awful [and] important a Trial [to which a State is party]
should not be cognizable by any Court but the Supreme"). But this
position has long been rejected and is inconsistent with the
doctrine of congressional abrogation, which presumes that States
may be sued in federal district court in the first instance when
Congress properly so provides, see
Seminole Tribe, 517 U.
S., at 55.
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