ROBERTS, C. J., DISSENTING
VIRGINIA OFFICE FOR PROTECTION AND ADVOCACYV. STEWART
563 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-529
VIRGINIA OFFICE FOR PROTECTION AND ADVO- CACY,
PETITIONER
v. JAMES W. STEWART, III, COMMISSIONER,
VIRGINIA DEPARTMENT OF BEHAVIORAL HEALTH AND DE- VELOPMENTAL
SERVICES, et al.
on writ of certiorari to the united states court of
appeals for the fourth circuit
[April 19, 2011]
Chief Justice Roberts, with whom
Justice Alito joins, dissenting.
Today the Court holds that a
state agency may sue officials acting on behalf of the State in
federal court. This has never happened before. In order to reach
this unsettling result, the Court extends the fiction of
Ex
parte Young—what we have called an “empty formalism”—well
beyond the circumstances of that case. Because I cannot subscribe
to such a substantial and novel expansion of what we have also
called “a narrow exception” to a State’s sovereign immunity, I
respectfully dissent.
I
A
“The federal system established
by our Constitution preserves the sovereign status of the States.”
Alden v.
Maine,
527 U. S. 706, 714
(1999). As confirmed by the Eleventh Amendment, “[a]n integral
component of that residuary and inviolable sovereignty” is the
States’ “immunity from private suits.”
Federal Maritime
Comm’n v.
South Carolina Ports Authority,
535 U. S. 743, 751–753
(2002) (internal quotation marks omitted);
Hans v.
Louisiana,
134 U. S. 1, 13 (1890)
(“ ‘It is inherent in the nature of sovereignty not to be
amenable to the suit of an individual
without its
consent’ ” (quoting The Federalist No. 81 (A.
Hamilton))). “The preeminent purpose of state sovereign immunity is
to accord States the dignity that is consistent with their status
as sovereign entities.”
Federal Maritime Comm’n,
supra, at 760. Accordingly, any time a State is haled into
federal court against its will, “the dignity and respect afforded
[that] State, which [sovereign] immunity is designed to protect,
are placed in jeopardy.”
Idaho v.
Coeur d’Alene Tribe
of Idaho,
521
U. S. 261, 268 (1997). The immunity does not turn on whether
relief will be awarded; “[t]he Eleventh Amendment is concerned not
only with the States’ ability to withstand suit, but with their
privilege not to be sued.”
Puerto Rico Aqueduct and Sewer
Authority v.
Metcalf & Eddy, Inc.,
506 U. S. 139, 147, n. 5
(1993). See
Federal Maritime Comm’n,
supra, at
769 (“the primary function of sovereign immunity is not to protect
state treasuries, but to afford the States the dignity and respect
due sovereign entities” (citation omitted)).
Because of the key role state
sovereign immunity plays in our federal system, the Court has
recognized only a few exceptions to that immunity. The sole one
relevant here is the “narrow exception,”
Seminole Tribe of
Fla. v.
Florida,
517 U. S. 44, 76 (1996),
established by our decision in
Ex parte Young,
209 U. S. 123 (1908). In
Ex parte Young, the Court held that private litigants
could seek an injunction in federal court against a state official,
prohibiting him from enforcing a state law claimed to violate the
Federal Constitution. See
id., at 159–168. As we have
often observed,
Ex parte Young rests on the “obvious
fiction,”
Couer d’Alene Tribe,
supra, at 270,
that such a suit is not really against the State, but rather
against an individual who has been “stripped of his official or
representative character” because of his unlawful conduct,
Ex
parte Young,
supra, at 159–160.[
Footnote 1]
While we have consistently acknowledged the
important role
Ex parte Young plays in “promot[ing] the
vindication of federal rights,” we have been cautious not to give
that decision “an expansive interpretation.”
Pennhurst State
School and Hospital v.
Halderman,
465 U. S. 89, 105, 102 (1984). Indeed,
the history of our
Ex parte Young jurisprudence has
largely been focused on ensuring that this narrow exception is
“narrowly construed,” 465 U. S., at 114, n. 25. We have, for
example, held that the fiction of
Ex parte Young does not
extend to suits where the plaintiff seeks retroactive relief,
Edelman v.
Jordan,
415 U. S. 651, 678
(1974); where the claimed violations are based on state law,
Pennhurst,
supra, at 106; where the federal law
violation is no longer “ongoing,”
Green v.
Mansour,
474
U. S. 64, 71 (1985); “where Congress has prescribed a detailed
remedial scheme for the enforcement against a State” of the claimed
federal right,
Seminole Tribe,
supra, at 74; and
where “special sovereignty interests” are implicated,
Couer
d’Alene Tribe,
supra, at 281.
We recently stated that when “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.”
Verizon Md. Inc. v.
Public Serv. Comm’n
of Md.,
535 U.
S. 635, 645 (2002) (internal quotation marks omitted). But not
every plaintiff who complies with these prerequisites will be able
to bring suit under
Ex parte Young. Indeed, in
Verizon itself the Court went beyond its so-called
straightforward inquiry in considering whether
Ex parte
Young applied. After deciding the plaintiffs “clearly
satisfie[d]” the “straightforward inquiry,” the Court went on to
examine whether Congress had created a detailed remedial scheme
like the one in
Seminole Tribe. 535 U. S., at 645, 647–648
(internal quotation marks omitted). Only after determining that
Congress had not done so did the Court conclude that the suit could
go forward under
Ex parte Young.
If
Verizon’s formulation set forth
the only requirements for bringing an action under
Ex parte
Young, two of our recent precedents were wrongly decided. In
Seminole Tribe, the Court acknowledged that it had often
“found federal jurisdiction over a suit against a state official
when that suit seeks only prospective injunctive relief in order to
end a continuing violation of federal law.” 517 U. S., at 73
(internal quotation marks omitted). The Court held, however, that
the “situation presented” there was “sufficiently different from
that giving rise to the traditional
Ex parte Young action
so as to preclude the availability of that doctrine.”
Ibid.[
Footnote 2]
In
Couer d’Alene Tribe, the Court
recognized that an “allegation of an ongoing violation of federal
law where the requested relief is prospective is
ordinarily sufficient to invoke the
Young
fiction.” 521 U. S., at 281 (emphasis added). The Court held,
however, that the action could not proceed under
Ex parte
Young because it implicated “special sovereignty interests”—in
that case, the State’s property rights in certain submerged lands.
521 U. S., at 281–283.
As we explained in
Papasan v.
Allain,
478
U. S. 265 (1986), there are “certain types of cases that
formally meet the
Young requirements of a state official
acting inconsistently with federal law but that stretch that case
too far and would upset the balance of federal and state interests
that it embodies.”
Id., at 277. This is one of those
cases.
In refusing to extend
Ex parte Young
to claims that involve “special sovereignty interests,” the Court
in
Coeur d’Alene Tribe warned against a rote application
of the
Ex parte Young fiction:
“To interpret
Young to
permit a federal-court action to proceed in every case where
prospective declaratory and injunctive relief is sought against an
officer, named in his individual capacity, would be to adhere to an
empty formalism and to undermine the principle … that Eleventh
Amendment immunity represents a real limitation on a federal
court’s federal-question jurisdiction. The real interests served by
the Eleventh Amendment are not to be sacrificed to elementary
mechanics of captions and pleading. Application of the
Young exception must reflect a proper understanding of its
role in our federal system and respect for state courts instead of
a reflexive reliance on an obvious fiction.” 521 U. S., at 270.
B
It is undisputed that
petitioner’s complaint alleges an ongoing violation of federal law
by a state official and seeks only prospective relief. If this were
a “traditional
Ex parte Young action,”
Seminole
Tribe,
supra, at 73, petitioner might very well be
able to pursue its claims under that case. This, however, is
anything but a traditional case—and petitioner is anything but a
typical
Ex parte Young plaintiff.
Unlike the plaintiffs in
Ex
parte Young—and, for that matter, unlike any other plaintiff
that has ever sought to invoke
Ex parte Young before this
Court—petitioner is a state agency seeking to sue officials of the
same State in federal court. The Court is troubled by this novelty,
ante at 12–13, but not enough. See
Free Enterprise
Fund v.
Public Company Accounting Oversight Bd., 561
U. S. ___, ___ (2010) (slip op., at 25) (“Perhaps the most telling
indication of [a] severe constitutional problem . . . is the lack
of historical precedent” (internal quotation marks omitted)); cf.
Alden, 527 U. S., at 743–745;
Printz v.
United States,
521 U. S. 898, 905–910,
918, 925 (1997). This is especially true in light of the
“presumption” we articulated more than 120 years ago in
Hans v.
Louisiana, that States are immune from
suits that would have been “anomalous and unheard of when the
Constitution was adopted.”
Hans, 134 U. S., at 18; see
also
Alden,
supra, at 727 (invoking
presumption).
Accordingly, when determining whether to lift
the bar of sovereign immunity, we have “attribute[d] great
significance” to the absence of analogous suits “at the time of the
founding or for many years thereafter.”
Federal Maritime
Comm’n, 535 U. S., at 755. This sort of suit was not only
anomalous and unheard of at the time of the founding; it was
anomalous and unheard of yesterday. The
Hans presumption
applies here with full force.
The Court speculates that these suits have not
previously arisen because the necessary conditions—state agencies
pursuing a federal right free of internal state veto—are themselves
novel. See
ante, at 12; see also
ante, at 3–4
(Kennedy, J., concurring). Even if true, that simply highlights the
fact that this case is not suitable for mere rote application of
Ex parte Young.
In addition to its novel character,
petitioner’s complaint “conflicts directly with the principles of
federalism that underlie the Eleventh Amendment.”
Pennhurst, 465 U. S., at 106. In
Alden, we held
that state sovereign immu- nity prohibited Congress from
authorizing “private suits against nonconsenting States in their
own courts.” 527 U. S., at 749. We explained that such power would
permit one branch of state government, the “State’s own courts,”
“to coerce the other branches of the State” and “to turn the State
against itself.”
Ibid.
Here the Court goes further: this suit
features a state agency on one side, and state executive officials
on the other. The objection in
Alden was that the Federal
Government could force the State to defend itself before itself.
Here extending
Young forces the State to defend itself
against itself in federal court.
Both sides in this case exercise the sovereign
power of the Commonwealth of Virginia. Petitioner claims the title
of “The Commonwealth of Virginia” in its complaint, App. 10;
respondents are state officials acting in an official capacity.
Whatever the decision in the litigation, one thing is clear: The
Commonwealth will win. And the Commonwealth will lose. Because of
today’s holding, a federal judge will resolve which part of the
Commonwealth will prevail.
Virginia has not consented to such a suit in
federal court; rather, petitioner has unilaterally determined that
this intramural dispute should be resolved in that forum. This is
precisely what sovereign immunity is supposed to guard against. See
ante, at 10 (“The specific indignity against which
sovereign immunity protects is the insult to a State of being haled
into court without its consent”). That indignity is compounded when
the State is haled into federal court so that a federal judge can
decide an internal state dispute.
The Court is wrong to suggest that Virginia
has no sovereign interest in determining
where such
disputes will be resolved. See
ante, at 10–11, and n. 6.
It is one thing for a State to decide that its components may sue
one another in its own courts (as Virginia did here); it is quite
another thing for such a dispute to be resolved in federal court
against the State’s wishes. For this reason, the Court’s examples
of other suits pitting state entities against one another are
inapposite. In each of those hypotheticals, the State consented to
having a particular forum resolve its internal conflict. That is
not true here.[
Footnote 3]
In sum, the “special sovereignty interests”
implicated here make this case “sufficiently different from that
giving rise to the traditional
Ex parte Young action so as
to preclude the availability of that doctrine.”
Seminole
Tribe, 517 U. S., at 73. I would cling to reality and not
extend the fiction of
Ex parte Young to cover petitioner’s
suit.
II
The Court offers several
justifications for its expansion of
Ex parte Young. None
is persuasive.
The Court first contends that
whether the
Ex parte Young fiction should be applied turns
only on the “relief sought” in a case.
Ante, at 8–9
(internal quotation marks omitted). The Court is correct that
several of our prior cases have focused on the nature of the relief
requested. See,
e.g.,
Edelman, 415 U. S., at
664–671. That may well be because “the difference between the type
of relief barred by the Eleventh Amendment and that permitted under
Ex parte Young will not in many instances be that between
day and night.”
Id., at 667. But the Court is wrong to
draw a negative implication from those cases and categorically
conclude that there can be no other basis for determining whether
to extend
Ex parte Young’s fiction.
The thrust of the Court’s argument appears to
be that, because the relief sought here is no different from that
which could be sought in a suit by a private protection and
advocacy system, the doctrine of
Ex parte Young should
also apply to a suit brought by a state system.
Ante, at
7–9. But private entities are different from public ones: They are
private. When private litigants are involved, the State is not
turned against itself.
Contrary to the Court’s suggestion, see
ante, at 9, there is indeed a real difference between a
suit against the State brought by a private party and one brought
by a state agency. It is the difference between eating and
cannibalism; between murder and patricide. While the ultimate
results may be the same—a full stomach and a dead body—it is the
means of getting there that attracts notice. I would think it more
an affront to someone’s dignity to be sued by a brother than to be
sued by a stranger. While neither may be welcomed, that does not
mean they would be equally received.
The Court also contends that petitioner’s
ability to sue state officials in federal court “is a consequence
of Virginia’s own decision to establish a public [protection and
advocacy] system.”
Ibid. This cannot mean that Virginia
has consented to an infringement on its sovereignty. That argument
was rejected below, and petitioner did not seek certiorari on that
issue. See
Virginia v.
Reinhard, 565 F. 3d
110, 116–118 (CA4 2009); Pet. for Cert. i.
Instead the Court claims that “Virginia has
only itself to blame”—if it wanted to avoid its current
predicament, it could have chosen to establish a private entity
instead.
Ante, at 9–10, and n. 5; see also
ante, at 3 (Kennedy, J., concurring). But I am aware of no
doctrine to the effect that an unconstitutional establishment is
insulated from challenge simply because a constitutional
alternative is available. And here the public and private systems
are not interchangeable alternatives in any event.
The Court’s analysis is also circular; it
wrongly assumes Virginia knew in advance the answer to the question
presented in this case. Only
after concluding that
Ex
parte Young applies to this arrangement—that for the first
time in history a state agency may sue an unwilling State in
federal court—can the Court suggest that Virginia knowingly exposed
its officers to suit in federal court.
In a similar vein, the Court asserts that
because Virginia law authorizes petitioner to exercise independent
litigating authority, petitioner should be treated the same “as any
other litigant.”
Ante, at 13. But petitioner is not like
any other litigant. While it is true petitioner enjoys some
independence from the State’s executive branch, that does not mean
petitioner is independent
from the State. As noted,
petitioner certainly views itself as “The Commonwealth of
Virginia,” App. 10, and would presumably invoke sovereign immunity
itself if sued. As a matter of sovereign immunity law, it should
make no difference how a State chooses to allocate its governmental
powers among different state agencies or officials.
The Court is wrong to suggest that simply
because petitioner possesses independent litigating authority, it
may sue state officials in federal court. See
ante, at 13
(“the Eleventh Amendment presents no obstacle” since it “was
Virginia law that created [petitioner] and gave it the power to sue
state officials”). There is more to this case than merely whether
petitioner needs the approval of the Attorney General to sue, and
the Virginia Code provisions cited by the Court say nothing about
actions against the State in federal court.
If independent litigating authority is all
that it takes, then scores of state entities now “suddenly possess
the authority to pursue
Ex parte Young actions against
other state officials” in federal court.
Reinhard,
supra, at 124. There would be no Eleventh Amendment
impediment to such suits. Given the number of state agencies across
the country that enjoy independent litigating authority, see,
e.g., Brief for State of Indiana et al. as
Amici Curiae 11–13, the Court’s decision today
could potentially lead to all sorts of litigation in federal courts
addressing internal state government disputes.
And there is also no reason to think that the
Court’s holding is limited to state
agency plaintiffs.
According to the Court’s basic rationale, state officials who enjoy
some level of independence could as a matter of federal law bring
suit against other state officials in federal court. Disputes that
were formerly resolved in state cabinet rooms may now appear on the
dockets of federal courts.
* * *
No one questions the continued
vitality or importance of the doctrine announced in
Ex parte
Young. But
Ex parte Young was about affording relief
to a private party against unconstitutional state action. It was
not about resolving a dispute between two different state actors.
That is a matter for the State to sort out, not a federal
judge.
Our decision in
Chisholm
v.
Georgia, 2 Dall. 419 (1793)—permitting States to be
sued by private parties in federal court—“created such a shock of
surprise” throughout the country “that the Eleventh Amendment was
at once proposed and adopted.”
Principality of Monaco v.
Mississippi,
292 U. S. 313, 325
(1934). It is fair to say that today’s decision will probably not
trigger a similar response. But however much their practical
functions and prominence may have changed in the past 218 years,
the States remain a vital element of our political structure.
Sovereign immunity ensures that States retain a stature
commensurate with their role under the Constitution. Allowing one
part of the State to sue another in federal court, so that a
federal judge decides an important dispute between state officials,
undermines state sovereignty in an unprecedented and direct way.
The fiction of
Ex parte Young should not be extended to
permit so real an intrusion.
Because I believe the Court’s novel expansion
of
Ex parte Young is inconsistent with the federal system
established by our Constitution, I respectfully dissent.
Footnote 1
Ex parte Young also rests on the
“well-recognized irony that an official’s unconstitutional conduct
constitutes state action under the Fourteenth Amendment but not the
Eleventh Amendment.”
Pennhurst State School and Hospital
v.
Halderman,
465 U. S. 89, 105 (1984) (internal
quotation marks omitted).
Footnote 2
While I agree that in
Seminole Tribe
“we refused to permit suit to proceed” under
Ex parte
Young because Congress “had foreclosed recourse to the
doctrine,”
ante, at 7, n. 3, that simply confirms my
point that the availability of
Young depends on more than
just whether
Verizon’s prescribed inquiry is satisfied. In
short,
Seminole Tribe makes clear that a plaintiff who
files a “complaint alleg[ing] an ongoing violation of federal law
and seeks relief properly characterized as prospective,”
Verizon, 535 U. S., at 645 (internal quotation marks
omitted), may nonetheless be barred from pursuing an action under
Young.
Footnote 3
Sovereign immunity principles would of course
not prohibit this Court from reviewing the federal questions
presented by this suit if it had been filed in state court. See
ante, at 11. We have held that “it is inherent in the
constitutional plan that when a state court takes cognizance of a
case, the State assents to appellate review by this Court of the
federal issues raised in the case whoever may be the parties to the
original suit, whether private persons, or the state itself.”
McKesson Corp. v.
Division of Alcoholic Beverages and
Tobacco, Fla. Dept. of Business Regulation,
496 U. S. 18, 30 (1990)
(internal quotation marks and citation omitted). By contrast, there
is nothing “inherent in the constitutional plan” that warrants
lower federal courts handling intrastate disputes absent a State’s
consent.
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