Instant Analysis: Virginia Office of Protection v. Stewart

April 19th, 2011

In Virginia Office for Protection and Advocacy v. Stewart, Justice Scalia writing for 6 members, held that Ex parte Young allows a federal court to hear a lawsuit for pro- spective relief against state officials brought by another agency of the same State. Justice Kennedy filed a concurring opinion joined by Justice Thomas. Chief Justice Roberts dissented, joined by Justice Alito. Justice Kagan recused. Looks like another case of that pesky conservative Court limiting the access of litigants to Federal Courts to vindicate Federal civil rights.

Majority Opinion

The key factor to consider for Ex Parte Young issues is the effect of the relief, not who is bringing the suit. Thus, a government agency falls within Young’s ambit.

Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, held that, in determining the Ex parte Young doctrine’s applica- bility, “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.’ ” Id., at 645. VOPA’s suit satisfies that inquiry. Respondents concede that the ac- tion would be proper were VOPA a private organization rather than a state agency. The “general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought,” Penn- hurst, supra, at 107, not who is bringing the lawsuit. This Court ap- plied that criterion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, which held that an Indian Tribe could not invoke Ex parte Young to bring what was essentially a quiet title suit that would “extinguish [Idaho’s] control over . . . lands and waters long deemed . . . an inte- gral part of its territory.” Id., at 282. Respondents have advanced no argument that the relief sought here threatens a similar invasion of Virginia’s sovereignty. Pp. 7–9.

Roberts in dissent disputes this point, hesitating to draw a “negative implication” from these cases that did not address this point. Private litigants are different from public litigants.

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. . . . But private entities are different from public ones: They are private. When private litigants are involved, the State is not turned against itself.

In somewhat grotesque language, Roberts draws the distinction between eating and cannibalism:

It is the difference between eating and cannibal- ism; 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.

Scalia finds no indignity here, in part, because Virginia created this agency (there is something of a waiver argument I suppose):

Respondents claim that a State’s dignity is diminished when a federal court adjudicates a dispute between its components. But a State’s stature is not diminished to any greater degree when its own agency sues to enforce its officers’ compliance with federal law than when a private person does so. Moreover, VOPA’s power to sue state officials is a consequence of Virginia’s own decision to establish a public P&A system. Not every offense to a State’s dignity constitutes a denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haled into court without its consent; that does not occur just because a suit happens to be brought by another state agency.

Justice Kennedy’s Concurring Opinion

Kenendy, joined by Thomas, concurred to stress that the expansions of the Ex Parte Young Doctrine have been “not without careful attention in each case to the sovereign interests of the State.”

In this case, in my view, the Virginia Office for Protec- tion and Advocacy may rely on Young, despite the some- what striking novelty of permitting a state agency to sue officials of the same State in federal court. In the posture of the case as it comes before the Court, it must be as- sumed that VOPA has a federal right to the records it seeks, and so the extension of Young would vindicate the Supremacy Clause. To be balanced against this important interest is the need to preserve “the dignity and respect afforded a State, which the immunity is designed to pro- tect.” Coeur d’Alene, supra, at 268. Permitting a state agency like VOPA to sue officials of the same State does implicate the State’s important sovereign interest in using its own courts to control the distribution of power among its own agents. But the affront to the State’s dignity is diminished to some extent when it is noted that if the State had elected the alternate course of designating a private protection and advocacy system it then would have avoided any risk of internal conflict while still participat- ing in the federal program. The availability of that alter- nate course does not, in my view, weigh much in favor of the validity of the underlying federal scheme, but the only question here is the reach of the Young exception.

Kennedy also notes a number structural limitations states can rely on to prevent a flood of similar law suits to resolve “intramural disputes.”

First, and most important, state law must authorize an agency or official to sue another arm of the State. . . Second, to the extent there is some doubt under state law as to an officer’s or agency’s power to sue, or any other state-law issue that may be dispositive, federal courts should abstain under Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496 (1941). . . Finally, federal law does not often create rights for state officials or agencies to assert against other arms of the State.

Kennedy continues and develops a strongly federalist-themed limitation (focusing on the spending power) on Ex Parte Young, almost hinting at what future challenges may look like:

All this is simply to underscore that the program at issue may present constitutional questions but that the parties do not raise them in this litigation. Virginia does not argue, for example, that Congress exceeded its spend- ing power under Article I, §8 by forcing a state that wishes to designate a public agency as its advocacy system to allow intramural suits like the instant one or by requiring that the agency be structured as Congress directs. . . .
Young—a court-made doctrine based on convenience, fiction, or both—neither implicates nor subsumes these more fundamental concerns regarding the excessive exercise of federal power. The Court should be most cautious before deciding cases that might later lead to a general principle that the National Government can condition receipt of funds on the State’s agreement to make far-reaching changes with respect to its governmental structure or its basic policies of governance in matters within its special competence. Assuming, as the Court must, that the statutes here are constitutional, the narrow question is whether VOPA may rely on Young to avoid the sovereign immunity bar.
One might doubt whether the constitutional question may be so severed from the Young analysis. The Court wields Young in the name of the Supremacy Clause only to vindicate important federal rights. Perhaps this Court should not extend the fiction in the name of claims that may rest on unconstitutional foundations. This concern is misplaced. The canon of constitutional avoidance directs courts to prefer the interpretation of a statute that pre- serves its validity, but the specter of a statute’s unconsti- tutionality cannot be permitted to distort the antecedent question of jurisdiction. Courts interpret and evaluate a statute only after confirming their authority to adjudicate the case before them. To decline to adjudicate a federal right for fear of its potential unconstitutionality is in effect to invalidate the right in the quest to save it. The Court should not permit the commission of acts that violate a federal right on the mere suspicion that Congress acted beyond its authority. Because the suit must be assumed to vindicate the Supremacy Clause and poses no serious affront to state sovereignty in light of the options available to the State under the program, it may proceed.

This passage will no doubt have strong implications for a certain big case that relies on the spending clause, and could even cast a limitation on South Dakota v. Dole.

Chief Justice Roberts’ dissenting opinion

In short, Roberts dissented, joined by Alito, because this opinion represented an “unprecedented” expansion of Ex Parte Young:

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 unset- tling 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.

Roberts focuses on the fact that the exception to the “obvious fiction” of Ex Parte Young is a “narrow exception,” and the Court’s hesitance to give it “an expansive interpretation.” He may as well be talking about Miranda here, except a narrow rule with broad exceptions.

In another passage, that may as well be taken out of Randy Barnett’s playbook, and could portend some future jurisprudence, the Chief cites PCAOB to note the relationship between unconstitutionality and lack of precedents (or, “unprecedented.”).

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).

Roberts makes the astute observation that both sides in this case are Virginia, and parts of the Old Dominion will win, other parts will and lose—and a federal judge decides which.

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 Common- wealth will prevail.

Roberts closes with a strong ode to federalism:

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 estab- lished by our Constitution, I respectfully dissent.

Very forceful dissent from the Chief.