Opinion analysis: Court allows suits by state agencies against state officials

The Court this week ruled that a suit by a state agency against a state official in federal court can move forward under Ex Parte Young.  The case, Virginia Office of Protection and Advocacy v. Stewart, tested the line between the mine run of Young cases (to which the Court applies a “straightforward” Young approach) and those Young cases that involve especial federalism issues (in which the Court has rejected Young claims).  The Court in VOPA concluded that the identity of the plaintiff as a state agency alone—so that the state essentially sued itself—did not raise the kind of “special sovereignty interests” that would move the case from the former category to the latter.

The case means that in the usual course, and maybe even in some harder cases, the federal courts will apply the “straightforward” approach and entertain a suit against a state official, notwithstanding the state’s Eleventh Amendment immunity, as long as the suit involves an ongoing violation of federal law and seeks only prospective relief.  The Court will likely reject Young claims only in those cases that involve the plainest or most flagrant violations of state sovereignty.

By all accounts, this case was unusual.  The Virginia Office of Protection and Advocacy, an independent state agency established as part of a federally funded program, sued a state official in federal court to obtain certain records to conduct its investigation.  The official, James Stewart, claimed that the state had essentially sued itself, because a state plaintiff had sued a state defendant.  This, according to Stewart, visited upon the state an especial violation of its dignity.  Stewart argued that because of this unique indignity, brought on by the plaintiff’s identity as a state agency, the case did not meet the narrow exception to the state’s Eleventh Amendment immunity carved out in Ex Parte Young.

Justice Scalia, writing for a six-member majority, rejected Stewart’s argument.  He explained that the Young doctrine was concerned with the identity of the defendant, rather than that of the plaintiff, even if the plaintiff were, as here, a state agency.  After all, a state suffers the same indignity whether it is sued by a state agency or a private actor.  And even Stewart agreed that a private actor could have brought this case.  Moreover, the state itself created VOPA and consented to its authority to litigate by accepting federal program funds.  Thus the state suffered no indignity here.

Because the state suffered no indignity, Justice Scalia applied the “straightforward” analysis outlined in Verizon Maryland, Inc. v. Public Service Commission of Maryland.  Under Verizon, a case against a state official can move forward in federal court if the plaintiff alleges an ongoing violation of federal law and seeks prospective relief.  Justice Scalia concluded that this case squarely met those requirements.

Justices Kennedy joined Justice Scalia’s majority opinion but also wrote a concurring opinion, which was joined by Justice Thomas, in which he emphasized the potential federalism concerns that sometimes arise with unique sovereignty issues.  Justice Kennedy argued that in a “novel” context like this, VOPA’s right to records, vindicated by its Young suit here, must be balanced against the need to preserve the state’s dignity and respect.  But on balance, Justice Kennedy concluded, VOPA’s interest outweighed any state dignity here.

Chief Justice Roberts, joined by Justice Alito, dissented.  The Chief Justice argued that the state-on-state nature of the case meant that the state (as defendant) suffered a unique indignity—precisely the interest that sovereign immunity is designed to protect.  He claimed that the Court veered from the “straightforward” approach and applied other federalism considerations in Seminole Tribe of Florida v. Florida and Idaho v. Coeur d’Alene Tribe of Idaho.  The Court in those cases rejected the Young claims based on the “special sovereignty interests” at stake, and, according to the Chief Justice, it should similarly reject the Young claim here.

Justice Scalia’s majority opinion reaffirms the “straightforward” approach in Verizon and extends it to this case, which arguably involves even greater state sovereignty concerns.  (Justice Scalia also authored the unanimous opinion in Verizon.)  Justices Kennedy and Thomas joined the majority, but their separate concurrence (and its balancing approach) suggests that they may not follow Justice Scalia in a case that involves yet greater state sovereignty concerns—for example, a case involving concerns somewhere between those in VOPA and those in Seminole Tribe or Coeur d’Alene.  In such a case, Justices Kennedy and Thomas may well conclude that the greater state sovereignty interests outweigh the plaintiff’s interest and join   Chief Justice Roberts and Justice Alito.

(Justice Kennedy wrote the majority opinion in Coeur d’Alene and used his balancing approach.  Chief Justice Rehnquist joined that opinion.  Justice O’Connor wrote a concurrence, joined by Justices Scalia and Thomas, that would not have so “recharacterize[d] and narrow[ed]” the Young doctrine.)

This all leaves some doubt as to whether Justice Scalia’s “straightforward” approach could garner a majority in a harder case involving all nine justices.  (Justice Kagan recused herself in VOPA.)  If Justice Scalia were to lose Justices Kennedy and Thomas in a closer case, he would have to pick up Justice Kagan to assemble a majority.  (This does seems likely, though.)

In the meantime, VOPA preserved the “straightforward” approach for the mine run Young claims and even extended that approach to this case (involving more arguably significant state sovereignty interests).  On the other hand, it almost certainly affirmed the rejection of those Young claims involving the most flagrant violations of state sovereignty, like those in Seminole Tribe and Coeur d’Alene.

But as to the next hard case—one involving state sovereignty interests somewhere between VOPA and Seminole Tribe and Coeur d’Alene—there seem to be three competing approaches on the Court:

Justice Scalia’s “straightforward” approach, which gives the Young doctrine its broadest scope, and which likely enjoys five or more votes in all cases but those involving the most flagrant violations of state sovereignty;

Justice Kennedy’s “balancing” approach, which gives the Young doctrine a mid-range scope, but aligns in result with the “straightforward” approach, at least in VOPA; and

Chief Justice Roberts’s “state dignity” approach, which gives the Young doctrine its narrowest scope.

After VOPA, the “straightforward” approach seems to have the momentum.