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Enforcing Federal Rights Against States and State Officials
by Herbert Semmel Director, Federal Rights Project National Senior Citizens Law Center


I. Introduction
At least since the passage of the Social Security Act in 1935, the federal government has become a major source of programs and funding to assist low income individuals and other persons with needs that cannot be met without public intervention. Cash assistance programs, medical care, food stamps, education, housing and numerous other programs were enacted by Congress, and in many instances these programs were implemented through grants to the states, which were responsible for their administration and obligated to operate them in compliance with federal law. In 1968, the Supreme Court issued its landmark decision in King v. Smith 2 . In a suit brought under 42 U.S.C. § 1983, the Court ordered state officials to operate federally funded programs in accordance with federal law. A state regulation under the Aid to Families with 3 Dependent Children program was declared invalid because it conflicted with federal law. Since then there have been thousands of federal cases against states to enforce federal requirements in federally funded programs. In addition to benefit programs, Congress has enacted a series of laws prohibiting discrimination based on race, ethnicity, religion, gender, disability and age. Most of these laws either have an express provision allowing suit against states or have been interpreted to allow 5 such suits. 4 Federal labor laws protecting employees have been made applicable to the states. As a result, the ability to enforce federal rights against states has been a key element in the protection of low income persons and populations that have traditionally been the target of

Preparation and publication of this article is supported by a grant from the Program on Law & Society of the Open Society Institute. For further information and regular updates on the issues in this article, go to and click on federal rights project. If you wish to receive regular updates by e-mail, send a request to be added to the federal rights listserve, addressed to The author expresses appreciation for the valuable contributions of Heather Zakson, Bourchard Foundation Fellow. This article originally appeared in 35 Clearinghouse Review 309 (September/October 2001), and is updated here through May 29, 2002.


392 U.S. 309 (1968) See also Maine v. Thiboutot , 448 U.S. 1 (1980)



See, e.g., 42 U.S.C. § 2000d-7.

See. e.g., Fair Labor Standards Act, 29 U.S.C. § 216(b) ; Family Medical Leave Act, 29 U.S.C. § 2617(a)(2).


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discriminatory practices, persons of color, women, persons with disabilities and older persons.. That protection has been undermined in part by a series of decisions by the five member conservative majority of the Supreme Court, acting under the mantle of sovereign immunity. However, enforcement of federal law in private actions against states is still possible.

II. Primer on the Eleventh Amendment
The 11 th Amendment to the Constitution bars suits in federal court against states by th citizens of other countries and other states. In 1890, the Supreme Court held that the 11 6 Amendment also applies to suits by citizens of the defendant state. As a result, 1. Private parties cannot sue a state or state agency by name in federal court unless th Congress has validly abrogated state 11 Amendment immunity or the state has consented to be th 7 sued. The 11 Amendment does not bar suits against local governments. What is a state agency 8 is dependent on a number of factors which are applied based on state law. What may appear to be local governmental entities (California's local school districts) may be held to be state agencies. 9 2. Under the process authorized by Ex parte Young , 10 private parties can sue state officials in their official capacity to enforce federal laws and regulations, but only prospective relief, i.e. injunctive, is available. No damages are recoverable in Young suits. 11 3. State officials may be sued for damages in their individual capacity for violations of federal constitutional or statutory rights committed in the course of official duties, but are entitled to qualified immunity. 12 Qualified immunity bars recovery insofar as the official's conduct "did not violate clearly established statutory or constitutional rights of which a


Hans v. Louisiana , 134 U.S. 1 (1890). Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)


8 Belanger v. Madera Unified School District U.S. 919 (1993)

, 963 F. 2d 248 (9

Cir. 1992), cert. den. 507


Id. 209 U.S. 123 (1908), Edelman v. Jordan , 415 U.S. 651 (1974).



The Fourth Circuit has held in Lizzi v. Alexander , 255 F. 3d 128 (4 th Cir. 2001), cert. den. 122 S. Ct. 812, reh. den. 122 S. Ct. 1352 (2002), that individual capacity suits against state officials arising out of official acts may be limited to suits under 42 U.S.C. § 1983, see Hafer v. Melo , 502 U.S. 21 (1991), and not to liability arising under other federal statutes, even though the statute specifically makes the state official liable. The court says that such suits are in fact


against the state, without specifying the reason. Presumably, the court expects the state to indemnify the official for any liability. The Second Circuit has held that the fact that the amount of damages sought far exceeds the ability to pay of the defendant sued in an individual capacity does not transform the suit into one against the state, even where the state voluntarily chooses to reimburse the official. Huang v. Johnson , 215. F. 3d 65 (2d Cir. 2001).

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13 reasonable person would have known." 4. States and state officials in their official capacity cannot be sued in federal courts on claims arising out of state law, regardless of the relief sought. Such claims are usually dismissed th even though there may be other federal claims that are not barred by the 11 Amendment. Federal courts have supplemental jurisdiction to hear state law claims against state officials sued in their individual capacity if there are federal claims arising from the same subject matter which give the federal court jurisdiction. 14 The provision in 42 U.S.C. § 1367(d), tolling the statute of th limitations on supplemental claims dismissed in federal court violates the 11 Amendment if the defendant is a state or state agency. 15 5. States have no sovereign immunity protection if the proceeding is initiated or 16 prosecuted by the federal government .

III. Abrogation of State Sovereign Immunity by Congress
Congress has a degree of power to abrogate state sovereign immunity and has done so on numerous occasions. If the abrogation is constitutionally valid, states may be sued in federal court in their own name for violations of the statutes to which the abrogation applies, and plaintiffs may recover damages against the state if the underlying statute provides a damage remedy. However, since 1996, cases against states based on abrogation of immunity and the recovery of damages against states for violations of federal law are sharply limited by two circumstances. Prior to 1996, it was thought that Congress could abrogate immunity in the course of legislating under any of its broad powers under Article I of the Constitution, including the 17 Commerce Clause, copyright powers and bankruptcy. But in Seminole Tribe of Florida v. 18 th Florida , the Supreme Court declared that Congress' power to abrogate 11 Amendment immunity of States to suits in federal courts is limited to cases arising under the legislative 19 enabling clause of the Fourteenth Amendment. The Court held that Congress had no power to abrogate immunity under the Indian Commerce Clause involved in the Seminole , and added that

Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982 ). See Capistrano, Robert G, Federal Rights: The Law of § 1983 , 33 Clearinghouse Review 393, 411 (1999).



28 U.S.C. § 1367 Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) . , 122 S. Ct. 1864,


16 Federal Maritime Commission v. South Carolina State Ports Authority n.19 (2002).


Pennsylvania v. Union Gas Co.

, 491 U.S. 1 (1989)


517 U.S. 44 (1996)

As discussed below, abrogation is also recognized under the Spending Clause powers of Congress. Abrogation of immunity under the Spending Clause power is more correctly denoted as waiver of immunity by a state accepting federal funds.


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it lacked the power under any other Article I provision. In addition, Congress must clearly express its intention to abrogate state immunity. In the same time period, the Court also narrowed the legislative authority of Congress under the Fourteenth Amendment, beginning with City of Boerne v. Flowers , 20 thus also limiting th the authority of Congress to abrogate state immunity. It then held that Congress lacked 14 21 Amendment authority to enact the Age Discrimination in Employment Act (ADEA). The next year it held that Congress exceeded its legislative powers under the Fourteenth Amendment in providing for damages against state governments for violation of the employment provisions of 22 Title I of the Americans with Disabilities Act (ADA). The immediate effect of these decisions is that if there is no Fourteenth Amendment legislative authority or other valid basis for abrogation and the state has not waived immunity, a suit cannot be brought in federal court against a state or state agency named as defendant, and retroactive monetary relief against state officials sued in their official capacity is barred. Although enforcement of federal rights against states has been limited, there remain a number of ways in which private litigation can succeed in enforcing federal rights against state governments. There is a major role still available to private federal court suits (and state court suits as well) to enforce federal rights against states.

IV. Federally Mandated Waiver of Immunity under Congressional Spending Power
23 College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board 24 reaffirmed that Congress, in exercise of its spending powers , may condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds may entail an agreement to the actions. Consent to suit in the federal court is one such condition that Congress may impose. But the mere receipt of federal funds 25 cannot establish that a state has consented to suit in federal court. There must be a clear 26 warning to the states of the consequences of accepting the money.

A number of cases have found a waiver even though the statutory language supporting a waiver is not phrased expressly in terms of waiver or abrogation of immunity. In Illinois Bell


521 U.S. 507 (1997), Kimel v. Florida Board of Regents , 528 U.S. 62 (2000) 531 U.S. 356 (2001).



Board of Trustees of the Univ. of Alabama v. Garrett,


527 U.S. 666, 686 (1999) U.S. Const., Art. I, § 8, clause 1. Atascadero State Hosp. v. Scanlon, 473 U.S.234 at 246 (1985) Id.




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27 Telephone Co. v. WorldCom Technologies, Inc., the state agency voluntarily undertook to act as part of a federal regulatory scheme. The applicable statute provided for federal court review of the decisions of the state agency, but did not expressly provide that the state agency could be made a party to the proceeding. The Seventh Circuit held that the agency had consented to being 28 a party by acting as a regulator, but the Fourth Circuit disagreed. The Supreme Court granted certiorari in both cases, but dismissed the Seventh Circuit case as improvidently granted and 29 decided the Fourth Circuit case without reaching the waiver issue. Congress has expressly abrogated state immunity for claims arising under four important federal laws enacted under the Spending Clause. 42 U.S.C. § 2000d-7 abrogates state immunity for suits under Title VI of the Civil Rights Act of 1962 (discrimination based on race and ethnicity), the Age Discrimination Act, Title IX of the Education Amendments of 1972 (gender discrimination in education), and Section 504 of the Rehabilitation Act of 1974 (discrimination based on disability). Although expressed in terms of abrogation, the provision has been applied 30 to the states as a waiver of immunity arising from a state accepting federal funds. Other federal statutes contain abrogation provisions, so each statute should be examined to determine whether it contains language which can be construed to impose a consent to suit against the state as a condition of accepting federal money. Cases upholding waivers under the Spending Clause apply to Section 504 of the 32 Rehabilitation Act, 31 Title IX of the Education Amendments of 1972, Title VI of the Civil

179 F. 3d 566 (7 th Cir. 1999), cert. granted sub nom Mathias v. WorldCom Technologies, Inc, 532 U.S. 903 (2001), cert. dismissed as improvidently granted , 122 S. Ct. 1780 (2002). See also Innes v. Kansas State University , 184 F. 3d 1275 (10 th Cir. 1999), cert. den. , 529 U.S. 1037 (2000), holding that participation of a state university in a federal student loan program which required the university to participate in bankruptcy proceedings constituted a waiver of immunity for those proceedings.


Bell Atlantic Maryland, Inc. v. MCIWorldcom, Inc.,

240 F. 3d 279, 293 (4


Cir. 2001).


Verizon Maryland Inc. v. Public Service Commission of Maryland

, 122 S. Ct. 1753

(2002) Lane v. Pena , 518 U.S. 187, 198 (1996). If treated as abrogation, 2000d-7 might not meet the test for 14 th Amendment legislative authority needed to abrogate state immunity. Reickenbacker v. Foster , 274 F 3d 974 (5 th Cir. 2001 ).

th At least five Circuit Courts of Appeal have held that the mandated waiver of 11 Amendment immunity by accepting federal funds in 42 U.S.C. § 2000d-7 is constitutional . See Stanley v. Litscher , 213 F. 3d 340 (7 th Cir. 2000), and cases cited therein. See also Nihiser v. Ohio E;P.A. , 269 F. 3d 626 (6 th Cir. 2001), petition for cert. pending .


Litman v. George Mason University, 1220 (2000)

186 F. 3d 544 (4


Cir. 1999) , cert. den. 120 S.Ct.

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Rights Act of 1964, 33 and the Individual with Disabilities Education Act . 34 If sovereign immunity is waived under statutes enacted as part of the Spending power, a private plaintiff may sue the state as a named defendant and could recover damages to the extent they are allowed by the underlying statute, as well as obtain injunctive and other relief. Laws enacted under the Spending Clause which expressly waive state immunity have a wide applicability to state governments. Although the four laws covered by abrogation in section 2000d-7 apply only to programs that are recipients of federal funds, almost all state agencies receiving federal funds should be covered by these laws. Under proposed regulations issued by the Clinton Administration, 35 (which state they merely reflect existing law), "program" is given a fairly broad definition, so all activities of a state agency receiving any federal funds would be covered by the anti-discrimination provisions of 2000d-7. The preamble to the proposed regulations offers by way of example that if a state health agency receives any federal funding, 36 all of its operations are subject to the anti-discrimination requirements. The Bush Administration has published proposed regulations with the same language. Final regulations to 37 the same effect were adopted by the Department of Education in November 2000. The Second Circuit imposed a limitation on the application of section 2000d-7 in cases involving Section 504. 38 It held that an effective waiver requires an intentional relinquishment of a known right. At the time that the state received the funds applicable to the suit, Seminole had not been decided and Title II of the Americans with Disabilities Act was understood to abrogate the state's sovereign immunity under Commerce Clause authority. Therefore, a state accepting federal funds could not have made a decision to waive immunity since "by all reasonable appearances state sovereign immunity had already been lost." The result of this approach to waiver is that in the Second Circuit if a state agreed to the waiver condition prior to March 27, 1996, the date of the Seminole opinion, sovereign immunity is not waived. There is one further limitation on the power of Congress to abrogate immunity under the Spending Clause. If the financial or other inducement offered by Congress is so coercive as to pass the point at which pressure turns into compulsion, the abrogation of immunity exceeds

Sandoval v. Hagan , 197 F. 3d 484 (11 th Cir. 1999), reh. den. 211 F. 3d 133 (11 th Cir. 2000), reversed on other grounds sub nom Alexander v. Sandoval, 121 S. Ct. 1511 (2001). Bradley v. Arkansas Department of Education , 189 F. 3d 745 (8 th Cir. 1999) , rev'd on other grounds sub nom Jim C. v. United States , 235 F. 3d 1079 (8 th Cir. 2000), cert. denied 121


S. Ct.2591(2001)

65 F. Reg. 64194 (Oct. 26, 2000) Id. at 64195. 67 Fed. Reg. 39830, 39833, 29 C.F.R. § 35.3 (June 10, 2002). Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn , 280 F. 3d 98 (2d Cir. 2001).




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Congressional power. 39 In Jim C. v. United States , 40 the potential loss of federal funds came to $250 million, 12% of the State's annual education budget. The court described replacing these funds as "politically painful, but we cannot say that it compels Arkansas's choice." This decision is very significant, because it is likely that with the exception of the Medicaid program, 41 few, if any, federal grant programs exceed the amount of aid to education.

V. Waiver of Immunity by Litigation
The Supreme Court unanimously held that removal of a case by a state from state court to the federal court waives 11 th Amendment immunity. Lapides v. Board of Regents 42 . But after stating this broad principle, the decision limits the holding to state-law claims in respect to which the State has explicitly waived immunity from state-court proceedings. The exact impact of the case cannot presently be judged. By the time the case reached the Supreme Court, the only remaining claims were a 1983 claim against the state agency and two state law claims as to which state law waives immunity in suits in state courts. Because 1983 claim cannot be asserted against a state agency, the only valid claims left in the case were the state law claims. The Supreme Court noted that the district court had authority to hear the state claims, so the case was not moot, although it also strongly suggested that the district court might wish to remand to the state court. The Court then held that waiver by litigation conduct was based on the need to "avoid inconsistency, anomaly, and unfairness, and not upon a State's actual preference or desire, which might, after all, favor selective use of `immunity' to achieve litigation advantages." For much the same reason, the question of waiver by litigation conduct is a federal question, which looks to fairness and not solely provisions of state law on waiver of immunity. Accordingly, the Court overruled Ford Motor Co. v. Dept. of Treasury of State of Indiana , 43 which refused to allow a waiver by litigation conduct unless expressly authorized by state law. What may ultimately be the most important part of the decision is the holding that the conduct of the litigation by the State Attorney General may constitute waiver even though the state constitution, here Georgia,


College Savings , supra, 527 U.S. at 686-87.

235 F. 3d 1079 (8 th Cir. 2000), cert. den. 533 U.S. 949 (2001). See also State of North Carolina v. Califano , 445 F. Supp. 532 (D. N. Car. 1977), aff'd without opinion 435 U.S. 962. (1978) (loss of funding for some 45 public health programs, amounting to 50 million in 1977


dollars not coercive). See also West Virginia v. U..S. .Department of Health & Human Services, 289 F. 3d 281 (4 Cir. 2002); California v. United States , 104 F. 3d 1086 (9 th Cir.), cert. den. 522 U.S. 806 (1997) (rejecting contention that Medicaid requirement to provide emergency care to immigrants is coercive since state health system would collapse without federal Medicaid funds).
th 42 41

122 S. Ct. 640 ( 2002) 323 U.S. 459 (1945)


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44 provides that immunity can be waived only by statute. In certain circumstances in some federal Circuits, if a state defendant appears and litigates without raising a sovereign immunity defense, it may be held to have waived the defense. Where the state agency litigated the case, including discovery, and did not raise the issue of sovereign immunity until the day of trial, the Ninth Circuit held that the state agency waived any claim to immunity. 45 Other courts have held that a sovereign immunity claim can be raised at almost any stage of the case. 46 In a case which was decided on other grounds, the Supreme Court stated in a footnote that "[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation of the federal court's judicial power, and therefore can be raised at any state of the proceedings, we have recognized that it is not coextensive with the limitation on Judicial Power in Article th III." 47 Commenting on this statement, the 5 Circuit observed that a state may waive immunity other than by an express renunciation, noting that

[c]ourts have found waiver in two general varieties of cases: where the state asserted claims of its own or evidenced an intent to defend the suit against it on the merits. The common thread among these cases is that the state cannot simultaneously proceed past the motion and answer stage to the merits and hold back an immunity defense. 48 This reasoning is supported by the rationale in Lapides , that avoiding unfairness underlies the waiver of immunity. In the removal context, states were removing claims that could be asserted th against it in state court and then moving to dismiss under the 11 Amendment. Similarly, it is unfair for a state to litigate on the merits without actively asserting its 11th Amendment defense and then if it loses, or is in danger of losing, on the merits, moving to dismiss because of sovereign immunity.

VI. Prospective Relief under

Ex Parte Young

Even absent a valid Congressional abrogation of state immunity, since Ex parte Young , prospective relief in federal courts has been available to enforce federal rights by suing a state


See the 11


Circuit decision in

Lapides , 251 F. 3d 1372, 1375 (11 , 179 F. 3d 754 (9


Cir. 2001).


Hill v. Blind Industries and Services of Maryland

Cir. 1999),

opinion amended and rehearing den.

, 201 F. 3d 1186 (2000)

Cisneros v. Wilson,

226 F. 3d 1113 (10

Cir. 2000)


Calderon v. Ashmus , 523 U.S. 740, 745, n. 2. (1998) 217 F. 3d 275, 279, reh. den. 228 F. 3d. 411 (5

Neinast v. State of Texas, cert. den., 531 U.S. 1190 (2001).


Cir. 2000),


209 U.S. 123 (1908)

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official, usually the official in charge of the agency responsible for the violation. Even if a th federal statute was not authorized by the 14 Amendment, its substantive provisions may be valid under other Congressional authority, such as the Commerce Clause, Maryland v. Wi rtz, 50 and enforceable prospectively against the States under Young. Prospective relief is an injunction. 51 and the violation of federal law must be ongoing to warrant an injunction. Some courts also 52 allow declaratory judgments as ancillary relief to injunctive relief.. The Supreme Court reaffirmed Ex parte Young in Seminole, supra and in its subsequent state immunity decisions. Indeed, the availability of the Young remedy is the majority's answer to the argument that states will be free to disregard federal law. In Seminole , the majority states that `[t]his argument wholly disregards other methods of ensuring the States' compliance with federal law; . . . an individual can bring suit against a state officer in order to ensure that the officer's conduct is in compliance with federal law, see, e.g., Ex parte Young . . ." 53 . InVerizon Maryland, Inc. v. Public Service Commission of Maryland , 54 the Court explicitly adopted a simple test for the application of Young, which should make its application easier in the lower courts. It stated that : " . . . 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'." Since the prayer for relief asked that the


392 U.S. 183 (1968) Johns v. Stewart, 57 F. 3d1544 (10 Lawson v. Shelby County, Tenn., 517 U.S. at 71, n. 14


Cir. 1998)


211 F. 3d 331, 335 (6




122 S. Ct. 1753 (2002). 521 U.S. 261, 268-280 (1997).