Supreme Court Strongly Reaffirms Ex parte Young

It appears that the Supreme Court conservative majority has, at least for the time being, accepted a balance between the federal interests reflected in the Supremacy Clause and the majority's perception of the sovereignty interests of the States as reflected in the 11th Amendment.

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In a major victory for advocates of enforcement of federal law against states, the U.S. Supreme Court unanimously rejected an attack on federal court enforcement of federal rights in suits applying Ex parte Young, reaffirming injunctive relief against state officials sued in their official capacity. Verizon Maryland, Inc. v. Public Service Commission of Maryland, 122 S. Ct. 1753 (May 20, 2002). The opinion was by Justice Scalia, one of the more ardent proponents on the Court for restrictions on suits against states.

Congress adopted legislation which preempted regulation of local telecommunication competition, 47 U.S.C. §§ 151 et seq. The Act sets out a complex procedure when a local carrier receives a request for interconnection from another carrier, including negotiations, mediation, arbitration and judicial review in federal court only. A state may, at its option, act as the arbitrator in these disputes. The Act states: "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 result complies with the federal Act. 47 U.S.C. § 252(e)(6).

A telephone company sued the Maryland Commission and its Commissioners in their official capacity in federal court to challenge a decision of the Commission, asserting federal jurisdiction under Section 252 and under the general federal question provision, 28 U.S.C. § 1331. The Fourth Circuit held that the Commission had not waived its 11th Amendment immunity by participating in the regulatory scheme and refused to proceed under Young.
 

Applying Ex parte Young

On appeal, the Supreme Court held that the federal court had jurisdiction under Section 1331 and found it unnecessary to reach the waiver issue because it held that plaintiff could obtain relief through the Young process. The decision makes clear that the test for applying Young is simple: " . . . 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 Commissioners be enjoined from enforcing an order in contravention of federal law, the test was met. The addition of a claim for declaratory relief did not impose on the state any monetary loss for past breach of it duty.

The Court also rejected a claim that Young was inapplicable because the Commission's decision was probably consistent with federal law. ". . . the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim."

Justice Kennedy, concurring, sought to keep alive his approach to Young which he put forward in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 268-280 (1997). Kennedy advocates a balancing test between the state interest, which he would usually find dominant, and the federal interest, thus applying a case by case analysis. Kennedy's opinion in Verizon is helpful, since it concedes that seven judges refused to follow his approach, instead "requiring nothing more than an allegation of an ongoing violation of federal law and a request for prospective relief." Note, however, that there may be more going on than the naked eye, not privy to internal discussions in the Court. may see. In the opening paragraph of Justice Sourter's concurring opinion, he expresses some doubt over whether the "apparent assumption" that relief is generally available under Young is accurate.
 

Alternate Remedy Issue

The Court also held that the Telecommunications Act did not display an intent to foreclose jurisdiction under Young. Emphasizing the scope of the relief available under the Telecommunications Act, it held that the Act placed no restriction on the relief a court could grant in review under § 252 of the Act. Thus there was no Congressional indication to limit remedies more strictly than those available under Young. The Court's inquiry was solely directed to the remedies available in the courts, without consideration of the complexity of the administrative process under the Telecommunications Ac, which was considerable.

In Seminole Tribe of Florida, v. Florida, 517 U.S. 44, 73-74, the Court referred to a "detailed remedial scheme for enforcement against a State of a statutorily creased right": as a reason for a court not to proceed against a state official under Young. However, the decision in Seminole ultimately turned on the fact that the law suits authorized by the legislation in question provided for a more narrow remedy than could be obtained in a Young action as an alternate remedy.

Thus, the analysis applicable to the "alternate remedy" issue appears to be the same in Seminole and Verizon One could argue that regardless of the statutory administrative process, if the judicial relief specified in the statute is no more restrictive than what is available in a Young suit, then there is no bar to using Young . Exhaustion of administrative remedies is not a prerequisite for a suit under Section 1983. Patsy v. Bd. of Regents of the State of Florida, 457 U.S. 496 (1982)

CAVEAT; If the plaintiff has participated in the administrative process, the defendant might claim administrative res judicata bars a suit (other than the applicable method of reviewing administrative decisions). See University of Tennessee v. Elliot, 478 U.S. 788 (1986); Olson v. Morris, 188 F. 3d 1083 (9^th Cir. 1999).
 

Authority to Sue State Officials

Although not directly addressed in the opinion, the decision should be helpful in cases where states argue the Young suits cannot be brought because the statute in question imposes liability only on an entity such as a governmental unit (Americans with Disabilities Act, Title II) or on a recipient of federal funds (Title VI of the Civil Rights Act of 1964 or Section 504 of the Rehabilitation Act of 1974). The Telecommunications Act primarily refers to "state Commissions" and not to the individual Commissioners, but the Supreme Court had no problem in applying Young to a suit against the Commissioners in their official capacity. See also Board of Trustees of the University of Alabama v. Garrett. 121 S,.Ct. 955, 968, n. 9 (2001), where the Court states:

Our holding here that Congress did not validly abrogate the State's sovereign immunity from suit by private individuals for money damages under Title I [of the Americans with Disabilities Act] does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young . . ."

The Court makes this statement even though Title I imposes liability only on "employers" and officers of employing entities are generally held not personally liable under Title I. EEOC v. AIC Security Investigations, Ltd., 55 F. 3d 1276 (7^th Cir. 1995) (sole stockholder and CEO of corporate employer not liable under Title I.). Footnote 9 of the opinion in Garrett has no problem with applying the fiction of Young, that the suit against a state official in her/his official capacity is not against the state for Eleventh Amendment purposes. At the same time, the Court apparently accepts the reality that for purposes of Title I, the suit against the official in her/his official capacity is against the employer, i.e., the state.