| [1] | IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT |
| [2] | No. 98-30228 |
| [3] | 2001.C05.0000109 <http://www.versuslaw.com> |
| [4] | March 12, 2001 |
| [5] | IFEANYI CHARLES ANTHONY OKPALOBI, DOING BUSINESS AS GENTILLY MEDICAL
CLINIC FOR WOMEN, PLAINTIFF-APPELLEE, AND CAUSEWAY MEDICAL SUITE; BOSSIER
CITY MEDICAL SUITE; HOPE MEDICAL GROUP FOR WOMEN; DELTA WOMEN'S CLINIC;
WOMEN'S HEALTH CLINIC; JAMES DEGUERCE; A. JAMES WHITMORE, III, INTERVENORS-APPELLEES, v. MIKE FOSTER, GOVERNOR OF THE STATE OF LOUISIANA; STATE OF LOUISIANA, SUBSTITUTED IN PLACE OF KENNETH DUNCAN, TREASURER OF THE STATE OF LOUISIANA, DEFENDANTS-APPELLANTS. |
| [6] | Before King, Chief Judge, Jolly, Higginbotham, Davis, Jones, Smith,
Wiener, Barksdale, Emilio M. Garza, DeMOSS, Benavides, Stewart, Parker,
and Dennis, Circuit Judges.*fn1 |
| [7] | The opinion of the court was delivered by: E. Grady Jolly, Circuit Judge |
| [8] | Appeal from the United States District Court for the Eastern District
of Louisiana |
| [9] | Sitting as an en banc court, we consider whether the district court
properly enjoined the "operation and effect" of the Louisiana
state tort statute at issue, which provides a private cause of action
against medical doctors performing abortions. Although, in this facial
attack on the constitutionality of the statute, consideration of the merits
may have strong appeal to some, we are powerless to act except to say
that we cannot act: these plaintiffs have no case or controversy with
these defendants, the Governor and Attorney General of Louisiana, and
consequently we lack Article III jurisdiction to decide this case. Seven
members of this en banc court conclude that the panel was in serious error,
as indeed is the dissent, in finding that this case presents an Ex parte
Young exception to the Eleventh Amendment immunity from suit in federal
court, which these defendants, the Governor and Attorney General of Louisiana,
enjoy. Accordingly, we reverse, vacate, and remand for entry of a judgment
of dismissal. |
| [10] | I. |
| [11] | Dr. Ifeanyi Charles Anthony Okpalobi ("Okpalobi"), joined
through intervention by five health care clinics and other physicians,
individuals, and businesses who perform abortions in the State of Louisiana,*fn2
challenge the constitutionality of La. R.S. Ann., tit. 9, § 2800.12 (West
Supp. 1999), or, more commonly, "Act 825."*fn3
The defendants are Mike Foster, Governor of Louisiana, and Richard Ieyoub,
Attorney General of Louisiana.*fn4 No
patients of the plaintiffs appear as parties in this suit. |
| [12] | Act 825 provides to women who undergo an abortion a private tort remedy
against the doctors who perform the abortion. It exposes those doctors
to unlimited tort liability for any damage caused by the abortion procedure
to both mother and "unborn child." Damages may be reduced, but
not eliminated altogether (and perhaps not at all with respect to any
damages asserted on behalf of the fetus), if the pregnant woman signs
a consent form prior to the abortion procedure. |
| [13] | The plaintiffs argue that Act 825 constitutes an "undue burden"
on a woman's right to obtain an abortion and is thus unconstitutional
under Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791 (1992).
The plaintiffs further claim that the Act will force physicians in Louisiana
to cease providing abortion services to women because of the potential
exposure to civil damage claims authorized by the Act.*fn5
Finally, the plaintiffs assert that, if they are forced to discontinue
providing their services, the State may have achieved in practical terms
what it could not constitutionally do otherwise--eliminate abortions in
Louisiana. |
| [14] | II. |
| [15] | The district court granted a temporary restraining order enjoining implementation
of the Act on August 14, 1997. Act 825, according to the district court,
"has the purpose and effect of infringing and chilling the exercise
of constitutionally protected rights." The court therefore granted
the plaintiffs' request for a preliminary injunction on January 7, 1998.
See Okpalobi v. Foster, 981 F.Supp. 977, 986 (E.D. La. 1998). The following
month, finding that the Act places an unconstitutional undue burden on
a woman's right to abortion, the court converted the temporary injunction
into a permanent injunction.*fn6 The
State timely appealed. |
| [16] | On appeal, a panel of this court upheld the injunction. Okpalobi v.
Foster, 190 F.3d 337 (5th Cir. 1999). The panel specifically addressed
the Eleventh Amendment issue--whether, under Ex parte Young, 209 U.S.
123, 28 S.Ct. 441 (1908), the state official defendants had sufficient
"connection" to the act in question to overcome the Eleventh
Amendment bar of suits against states in federal court.*fn7
The panel determined that "the Governor and the Attorney General
have powers and duties under state law sufficient to meet the minimum
requirements under the Eleventh Amendment." Okpalobi, 190 F.3d at
346. The panel further concluded that the plaintiffs had standing to assert
their rights and the rights of their patients. Id. at 350-353. The panel
then concluded that a case and controversy existed between these plaintiffs
and defendants and affirmed the district court's holding that Act 825
is unconstitutional in its entirety. |
| [17] | In addressing the issues before this en banc court, we first take note
that the panel opinion's jurisdictional holding rested primarily on the
Ex parte Young exception to the Eleventh Amendment. It is, of course,
one of the purposes of taking a case en banc to clarify the law when a
"panel decision conflicts with a decision of the United States Supreme
Court" or the case "involves one or more questions of exceptional
importance." Fed. R. App. P. 35(b)(1). Because the panel opinion
erroneously applied established Eleventh Amendment jurisprudence, and
because it was the focus of its jurisdictional holdings, we first address
those panel errors before turning to the more basic question of whether
this case presents an Article III case or controversy. |
| [18] | III. |
| [19] | The crux of the Eleventh Amendment issue in this case is whether the
named defendants, Louisiana's Governor and Attorney General, have the
requisite "connection" to the statutory scheme to remove the
Eleventh Amendment barrier to suits brought in federal court against the
State. We first say a very brief word about the historical and constitutional
forces that underlie the Eleventh Amendment. |
| [20] | The Eleventh Amendment was adopted in 1798 in direct response to the
Supreme Court's decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419
(1793), holding that the State of Georgia could properly be called to
defend itself in federal court against a citizen's suit. The alacrity
with which Congress and the states approved the Eleventh Amendment to
nullify Chisholm evinces the absolutely certain and fundamental respect
the early fathers demanded the federal courts pay to the sovereignty of
the several states.*fn8 Although the
attention given to the Eleventh Amendment has waxed and waned in the two
hundred years since its adoption, the importance of it as a structural
definition of our constitutional system has never been doubted. Thus,
the Supreme Court recently reemphasized that this structural principle
remains intact in Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2246 (1999).
There, the Court stated that "as the Constitution's structure, and
its history, and the authoritative interpretations by this Court make
clear, the States' immunity from suit is a fundamental aspect of the sovereignty
which the States enjoyed before the ratifications of the Constitution,
and which they retain today."*fn9
Indeed, it is "a settled doctrinal understanding, consistent with
the leading advocates of the Constitution's ratification, that sovereign
immunity derives not from the Eleventh Amendment but from the structure
of the original Constitution itself." Id. at 728. |
| [21] | It is against this background of the overriding importance of the Eleventh
Amendment in limiting the power of the federal courts over the sovereignty
of the several states, that we now consider whether the facts of this
appeal can fit into the exception carved from the Eleventh Amendment in
Ex parte Young, so as to allow the federal courts to enjoin Act 825. |
| [22] | IV. |
| [23] | A. |
| [24] | The Eleventh Amendment bars suits by private citizens against a state
in federal court, irrespective of the nature of the relief requested.
See Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565 (1978). A plaintiff
may not avoid this bar simply by naming an individual state officer as
a party in lieu of the State. Yet, few rules are without exceptions, and
the exception to this rule allows suits against state officials for the
purpose of enjoining the enforcement of an unconstitutional state statute.
This exception rests on the fiction of Ex parte Young--that because a
sovereign state cannot commit an unconstitutional act, a state official
enforcing an unconstitutional act is not acting for the sovereign state
and therefore is not protected by the Eleventh Amendment. Indeed, the
Eleventh Amendment inquiry today turns on a proper interpretation and
application of the Supreme Court's holding in Young. |
| [25] | Young, in relevant part, reads: |
| [26] | If, because they were law officers of the state, a case could be made
for . . . testing the constitutionality of the statute, by an injunction
suit brought against them, then the constitutionality of every act passed
by the legislature could be tested by a suit against the governor and
the attorney general . . . . That would be a very convenient way for obtaining
a speedy judicial determination of . . . constitutional law . . ., but
it is a mode which cannot be applied to the states . . . consistently
with the fundamental principle that they cannot, without their assent,
be brought into any court at the suit of private persons . . . In making
an officer of the state a party defendant in a suit to enjoin the enforcement
of an act alleged to be unconstitutional, . . . such officer must have
some connection with the enforcement of the act, or else it is merely
making . . . the state a party. 209 U.S. at 157 (emphasis added). |
| [27] | The principle of Young grew out of two predecessor cases, and can best
be understood by reference to Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418
(1898), and Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269 (1899). We begin
with a discussion of these two decisions before addressing Young and its
progeny. |
| [28] | B. |
| [29] | In Smyth, the plaintiffs challenged the constitutionality of a Nebraska
act regulating railroad rates for the transportation of freight and establishing
penalties for violations of the act. The statute authorized the assessment
of substantial fines by state authorities in addition to private liability.
See Smyth, 169 U.S. at 476. The plaintiffs named officers of the State
as defendants. The defendants contested the federal court's jurisdiction
on the grounds "that these suits are, in effect, suits against the
state, of which the circuit court of the United States cannot take jurisdiction
consistently with the eleventh amendment." 169 U.S. at 518. After
holding that "a suit against individuals for the purpose of preventing
them as officers of a state from enforcing an unconstitutional enactment
to the injury of the rights of the plaintiff is not a suit against the
state within the meaning of [the eleventh] amendment," the court
assumed jurisdiction of the case and struck down the law. Id. at 519.*fn10 |
| [30] | Although Smyth did not raise the question of how close a connection
is required between the defendant state officers and the enforcement of
the act, the Supreme Court elaborated on the principle when the question
was presented the following year in Fitts.*fn11
There, the court was faced with a constitutional challenge to an Alabama
act that prescribed certain maximum rates of toll to be charged on a Tennessee
river bridge. The act provided that, if the maximum rate was exceeded,
the aggrieved party could recover twenty dollars per infraction from the
offender. 172 U.S. at 516. The plaintiffs, arguing that the rates of toll
were "arbitrary" and "unreasonable" and constituted
a deprivation of property, sued the governor and attorney general of Alabama
as defendants and requested injunctive relief. The defendants moved "that
the bill be dismissed upon the ground that the suit was one against the
state, and prohibited by the constitution of the United States."
Id. at 518. |
| [31] | In concluding that the suit against the governor and attorney general
was effectively a suit against the state and thus barred by the Eleventh
Amendment, the Supreme Court reasoned that neither the governor nor the
attorney general "appear[s] to have been charged by law with any
special duty in connection with the act." Id. at 529. The court distinguished
other cases in which it had exercised jurisdiction (including Smyth) by
noting that "the defendants in each of those cases were officers
of the state, specially charged with the execution of a state enactment
alleged to be unconstitutional." Id. (emphasis added). Thus, in Fitts,
the Supreme Court articulated the requirement that there be a "close"
connection or a "special relation" between the statute and the
defendant state officer's duty before the Eleventh Amendment bar could
be overcome: |
| [32] | There is a wide difference between a suit against individuals, holding
official positions under a state, to prevent them, under the sanction
of an unconstitutional statute, from committing by some positive act a
wrong or trespass, and a suit against officers of a state merely to test
the constitutionality of a state statute, in the enforcement of which
those officers will act only by formal judicial proceedings in the courts
of the state. In the present case, as we have said, neither of the state
officers named held any special relation to the particular statute alleged
to be unconstitutional. They were not expressly directed to see to its
enforcement. Id. at 529-30 (emphasis added). |
| [33] | The court rationalized this relationship requirement by reference to
the core constitutional principle embodied in the Eleventh Amendment: |
| [34] | If, because they were law officers of the state, a case could be made
for the purpose of testing the constitutionality of the statute . . .
then the constitutionality of every act passed by the legislature could
be tested by a suit against the governor and the attorney general, based
upon the theory that the former, as the executive of the state, was, in
a general sense, charged with the execution of all its laws, and the latter,
as attorney general, might represent the state in litigation involving
the enforcement of its statutes. This would be a very convenient way for
obtaining a speedy judicial determination of questions of constitutional
law . . . but it is a mode which cannot be applied to the states of the
Union consistently with the fundamental principle that they cannot, without
their assent, be brought into any court at the suit of private persons.
Id. at 530. |
| [35] | Thus, Fitts illuminated the important precept that allowing state officers
to be sued in lieu of the State absent some "special connection"
would permit the narrow exception to swallow the fundamental, constitutionally-based
rule. It was upon this foundation that the Young doctrine was constructed. |
| [36] | C. |
| [37] | In Young, the plaintiffs challenged a Minnesota statute that created
a railroad commission, which executed an order fixing the rates various
railroad companies could charge for the carriage of merchandise. 209 U.S.
at 127. The legislature delineated specific penalties for violations of
such railroad regulations, including fines and possible imprisonment.*fn12
The attorney general, Edward T. Young, was named as a defendant in the
suit, which challenged the constitutionality of the series of state acts
regulating the railroad companies.*fn13
Specifically, the plaintiffs requested "[a]ppropriate relief by injunction
against the action of the defendant Young." Id. at 131. Young asserted
that the federal court had no jurisdiction over him as attorney general
because the suit was, in effect, against the state of Minnesota and barred
by the Eleventh Amendment. Nevertheless, the federal court issued a temporary
injunction against Young, enjoining him "from taking or instituting
any action or proceeding to enforce the penalties and remedies specified
in the act." Id. at 132. Young ignored the court order and immediately
filed a mandamus action in state court to compel the railroad's compliance
with the state law. Young was held in contempt by the federal court and
taken into custody. He then petitioned for habeas corpus to the United
States Supreme Court, asserting that the federal court injunction violated
the Eleventh Amendment. The Supreme Court was thus required to determine
whether Young, as a state officer, could be sued in federal court despite
the Eleventh Amendment bar. |
| [38] | The court determined that the Eleventh Amendment did not bar a federal
court injunction against the enforcement of the state statute. It held
that Young, as attorney general, could properly be enjoined in federal
court from enforcing unconstitutional state penalties against the railroad.
In so holding, the court stated: |
| [39] | The various authorities we have referred to furnish ample justification
for the assertion that individuals who, as officers of the state, are
clothed with some duty in regard to the enforcement of the laws of the
state, and who threaten and are about to commence proceedings, either
of a civil or criminal nature, to enforce against parties affected [by]
an unconstitutional act, violating the Federal Constitution, may be enjoined
by a Federal court of equity from such action. Id. at 155-56 (emphasis
added). |
| [40] | Finding that Young possessed such enforcement authority over the acts
in question, and recognizing his clear threat to exercise said authority
under alleged unconstitutional state law,*fn14
the court concluded that the Eleventh Amendment was no barrier to the
suit.*fn15 In authorizing the suit
against Young, the court distinguished the earlier finding of no jurisdiction
in Fitts by noting that, in that case, the penalties for disobeying the
act were to be collected by the individuals who were overcharged and "[n]o
officer of the state had any official connection with the recovery of
such penalties." Id. at 156. |
| [41] | Thus, Young solidified the doctrine that state officers could be sued
in federal court despite the Eleventh Amendment, while simultaneously
emphasizing the requirements that the officers have "some connection
with the enforcement of the act" in question or be "specially
charged with the duty to enforce the statute" and be threatening
to exercise that duty. Id. at 157, 158.*fn16 |
| [42] | D. |
| [43] | Young was decided almost 100 years ago. From its earliest years until
the present, it has spawned numerous cases upholding, explaining, and
recognizing its fundamental principle: that the defendant state official
must have some enforcement connection with the challenged statute. Two
years after Young, the Supreme Court in Western Union Telegraph Co. v.
Andrews, 216 U.S. 165, 30 S.Ct. 286 (1910), again upheld a suit against
a state official that enjoined enforcement of a state act. The act in
question, which regulated fees to be paid by foreign corporations, declared
that the defendant state officials "would, unless restrained by the
order of the court, institute numerous actions, as they had threatened
to do, for the recovery of the penalties aforesaid." Id. at 166.
Concluding that the recent Young decision was "precisely applicable
to the case at bar," the court found sufficient connection between
the defendant state officials and the challenged statute, stating: |
| [44] | The statute specifically charges the prosecuting attorneys with the
duty of bringing actions to recover the penalties. It is averred in the
bill, and admitted by the demurrer, that they threatened and were about
to commence proceedings for that purpose. Id. |
| [45] | Western Union, therefore, reinforced the interpretation that Young requires
both a close connection between the official and the act and the threatening
or commencement of enforcement proceedings by the official.*fn17 |
| [46] | More recently, other circuit courts have applied the Young guidelines
when adjudicating the Eleventh Amendment question raised in this appeal.
In Children's Healthcare v. Deters, 92 F.3d 1412 (6th Cir. 1996), the
plaintiffs brought a civil rights action against the Ohio Attorney General
and state prosecutors. The suit challenged statutes that provided exemptions
from the duty to provide adequate care for children for persons who treat
children by spiritual means. The court rejected federal court jurisdiction
over the matter, reaffirming that "Young does not apply when a defendant
state official has neither enforced nor threatened to enforce the allegedly
unconstitutional state statute." Id. at 1415. The requirement that
there be some actual or threatened enforcement action before Young applies
has been repeatedly applied by the federal courts. See also 1st Westco
Corp. v. School Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993)(citing
Rode v. Dellarciprete, 845 F.2d 1195, 1209 n.9 (3d Cir. 1988)); Long v.
van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992); Kelley v. Metropolitan
County Bd. of Educ., 836 F.2d 986, 990-91 (6th Cir. 1987). |
| [47] | Other federal courts have invoked Young's rationale when ascertaining
the applicability of this narrow Eleventh Amendment exception. In Gras
v. Stevens, 415 F.Supp. 1148 (S.D.N.Y. 1976), Judge Friendly rejected
the notion that a governor's general duty to "take care that the
laws are faithfully executed" is sufficient connection under Young
and Fitts to dissolve the Eleventh Amendment bar. Id. at 1151-52. The
court noted that "[i]n our view this would extend Ex parte Young
beyond anything which the Supreme Court intended or has subsequently held."
Id. at 1152. |
| [48] | As late as 2001, the Fourth, Ninth, Eleventh and Seventh Circuits rearticulated
the criteria of Young. In Lytle v. Griffith, 2001 WL 133189, at *6 (4th
Cir. Feb. 16, 2001), the Fourth Circuit, in remanding the case to determine
whether the defendant Governor had the requisite connection to the challenged
law, noted that "[t]he Young exception is limited, however, by its
requirement that named state officials bear a special relation to the
challenged statute." In Snoeck v. Brussa, 153 F.3d 984 (9th Cir.
1998), the Ninth Circuit found that the Eleventh Amendment barred a claim
against the Nevada Commission on Judicial Discipline, emphasizing that
compliance with the requirements of Young "must be determined under
state law depending on whether and under what circumstances a particular
defendant has a connection with the challenged state law." Id. at
986. The court concluded that, "[u]nder Nevada law, the Commission
has no enforcement power, and therefore, it has no connection to the enforcement
of the challenged law as required under Ex Parte Young." Id. at 987. |
| [49] | Moreover, in Summit Medical Association, P.C. v. Pryor, 180 F.3d 1326
(11th Cir. 1999), the Eleventh Circuit took note of the private civil
enforcement provision of the statute in question and stated that "the
doctrine of Ex parte Young cannot operate as an exception to Alabama's
sovereign immunity where no defendant has any connection to the enforcement
of the challenged law." Id. at 1341. Finally, the Seventh Circuit
in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999), vacated on other
grounds by 120 S.Ct. 2738 (2000), also observed that the statute in question
was to be enforced in private litigation: "[T]he states' Attorneys
General and local prosecutors have nothing to do with civil suits. Relief
against the public officials therefore would be pointless even if the
civil-liability provisions were problematic." Id. at 875. |
| [50] | E. |
| [51] | The Supreme Court's decision in Young, appraised in the light of its
predecessors Smyth and Fitts and its progeny, is thus properly understood
to create a precise exception to the general bar against suing states
in federal fora. This exception only applies when the named defendant
state officials have some connection with the enforcement of the act and
"threaten and are about to commence proceedings" to enforce
the unconstitutional act. Young, 209 U.S. at 155-56. |
| [52] | We now consider the application of the Young principle to the facts
in the case before us. |
| [53] | V. |
| [54] | The present inquiry is how to read and apply the requirement that the
defendants have some connection with the enforcement of the Act. Specifically,
the question raised before this en banc court is whether the Young fiction
requires that the defendant state official have some enforcement powers
with respect to the particular statute at issue, or whether the official
need have no such enforcement powers and only need be charged with the
general authority and responsibility to see that all of the laws of the
state be faithfully executed. |
| [55] | A. |
| [56] | As we have pointed out, the Young principle teaches that it is not merely
the general duty to see that the laws of the state are implemented that
substantiates the required "connection," but the particular
duty to enforce the statute in question and a demonstrated willingness
to exercise that duty. For a duty found in the general laws to constitute
a sufficient connection, it must "include[] the right and the power
to enforce the statutes of the state, including, of course, the act in
question . . ." Id. at 161 (emphasis added). Thus, any probe into
the existence of a Young exception should gauge (1) the ability of the
official to enforce the statute at issue under his statutory or constitutional
powers, and (2) the demonstrated willingness of the official to enforce
the statute.*fn18 |
| [57] | Although the panel opinion addressed the connection of the defendants
to the law in question, it nevertheless pursued a different, and we believe,
seriously erroneous course. The panel applied a two-part formula to assess
whether sufficient "connection" exists to warrant waiver of
the Eleventh Amendment protection: (1) an analysis of "what powers
the defendants wield to enforce the law in question," and (2) consideration
of "the nature of the law and its place on the continuum between
public regulation and private action." Okpalobi, 190 F.3d at 346.*fn19
We address, in turn, the flaws in each part of the panel's analysis. |
| [58] | 1. |
| [59] | After noting at the outset that "Act 825, on its face, does not
direct the State or its officers to do anything," the panel nevertheless
concluded "that the Governor and the Attorney General have powers
and duties under state law sufficient to meet the minimum requirements
under the Eleventh Amendment." Id. at 347.*fn20
The basis for this conclusion was the assertion that a mere duty to uphold
the laws of the state is sufficient under Young to authorize an Eleventh
Amendment waiver. The panel stated that its conclusion is discernible
from a proper reading of Young and Smyth, noting that, while the Fitts
Court required a "close" connection or a "special charge"
between the statute and the state officer's duty, the Young Court adopted
the more relaxed connection requirements outlined in Smyth.*fn21 |
| [60] | In essence, the panel suggests that there is some conflict between Fitts,
on the one hand, and Smyth and Young, noting that "[t]o the extent
that there is tension between Fitts's focus on the state officials' express
enforcement power and the later articulation in Young, we are controlled
by the Smyth doctrine and the unequivocal holding of Young that a state
officer's connection with the enforcement of the challenged act can '[arise]
out of the general law . . . so long as it exists.'" Id. at 344 (citing
Young, 209 U.S. at 157). We do not, however, find this tension in the
Smyth-Fitts-Young triad. The resolution in each of these three cases was
dictated, not by the application of a different legal rule, but by the
particular statutes and the connection to those statutes of the defendant
state officials. The challenged statutes in Young and Smyth (wherein the
defendants had enforcement powers over the railway acts) stand in sharp
contrast to the statute in Fitts (wherein the defendants were granted
no enforcement powers whatsoever with respect to the statute).*fn22
Fitts involved the establishment of toll rates for a single bridge. The
act in question was self-enforcing; if the operators of the bridge charged
an excessive toll, the statute entitled the aggrieved to sue for twenty
dollars.*fn23 Thus, the court in Young
characterized the Fitts statute as one in which |
| [61] | [n]o officer of the state had any official connection with the recovery
of such penalties. . . . As no state officer who was made a party bore
any close official connection with the act fixing the tolls, the making
of such officer a party defendant was a simple effort to test the constitutionality
of such act in that way, and there is no principle upon which it could
be done. A state superintendent of schools might as well have been made
a party. Id. at 156. |
| [62] | In differentiating the "general duty" authority of the officials
in Fitts, which the court found was insufficient to dissolve the Eleventh
Amendment bar, the Young Court noted that "[t]he officers in the
Fitts case occupied the position of having no duty at all with regard
to the act . . ." 209 U.S. at 158. The court then referenced with
approval a distinction noted by the court in Fitts, wherein the facts
in Fitts were clearly distinguished from the facts in Smyth and Reagan
v. Farmer's Loan & T. Co., 154 U.S. 362, 14 S.Ct. 1047 (1894): |
| [63] | In [Smyth and Reagan] the only wrong or injury or trespass involved
was the threatened commencement of suits to enforce the statute as to
rates, and the threat of such commencement was in each case regarded as
sufficient to authorize the issuing of an injunction to prevent the same.
The threat to commence those suits under such circumstances was therefore
necessarily held to be equivalent to any other threatened wrong or injury
to the property of a plaintiff which had theretofore been held sufficient
to authorize the suit against the officer. Young, 209 U.S. at 158.*fn24 |
| [64] | Considering the obvious enforcement potential that the defendant Young
had under the Minnesota statute, the panel's interpretation of the "some
connection" language as necessitating only an undefined, inchoate,
general duty to see that all of the laws of the state are enforced exceeded
any reasonable interpretation of Young. Indeed, Young does not reject
the "special charge" language in Fitts;*fn25
instead, Young merely allows the "special charge" to be drawn
implicitly from the laws of the state, rather than requiring that it be
stated explicitly in the challenged statute. Thus, the correct interpretation
of Young concludes that no such special charge need be found directly
in the challenged statute to meet the requisite "some connection"
so long as there is sufficient indicia of the defendant's enforcement
powers found elsewhere in the laws of the state.*fn26
This interpretation finds support in the following language in Young: |
| [65] | It has not, however, been held that it was necessary that such duty
should be declared in the same act which is to be enforced. In some cases,
it is true, the duty of enforcement has been so imposed . . . but that
may possibly make the duty more clear; if it otherwise exist[s] it is
equally efficacious. 209 U.S. at 157. |
| [66] | Thus, the panel erred by not recognizing that Fitts's "special
charge" requirement is an essential part of Young's holding. See
also Gras, 415 F.Supp. at 1151 (characterizing the statute in Young as
"implicitly charg[ing] [the attorney general] by statute with the
duty of collecting an allegedly unconstitutional tax."). This failing
led to the panel's conclusion that the general charge of the governor
and attorney general to implement and enforce all of the laws of the state
satisfies the requirements of Young. |
| [67] | In sum, Young does not minimize the need to find an actual enforcement
connection--some enforcement power or act that can be enjoined--between
the defendant official and the challenged statute. Instead, it provides
that this connection can be found implicitly elsewhere in the laws of
the state, apart from the challenged statute, so long as those duties
have the same effect as a "special charge" in the statute. |
| [68] | 2. |
| [69] | We turn now to the second prong of the panel's test--the place of Act
825 on a public-to-private "continuum." The panel concluded
that Act 825 implicates "public" action because "the purpose
and effect of the Act is to prevent women from obtaining legal abortion."
Okpalobi, 190 F.3d at 347. This continuum element was derived from Allied
Artists Pictures Corp. v. Rhodes, 473 F.Supp. 560 (S.D. Ohio 1979), aff'd
679 F.2d 656, 665 n.5 (6th Cir. 1982) (holding that statutory regulation
of private contracting with respect to movies amounted to state regulation
of movie producers and distributors). Notwithstanding the equivocal nature
of Allied Artists' "continuum" holding,*fn27
the majority seized upon this result and compared it to an act affecting
availability of abortion services: "We place such interference [with
abortion rights] on the Allied continuum near the end closest to laws
respecting the voting rights of citizens [see Socialist Workers Party
v. Rockefeller, 314 F.Supp. 984 (S.D.N.Y. 1970), aff'd, 400 U.S. 806 (1970)],
rather than alongside procedural aspects of domestic relations law [see
Gras, 415 F.Supp. 1148]." Okpalobi, 190 F.3d at 347. |
| [70] | The first weakness in the panel's use of this analysis to find a sufficient
connection between the state officials and Act 825 is its almost exclusive
reliance on Allied Artists. The sum total of the panel's support lies
in two district court cases, Allied Artists and Federal National Mortgage.
Allied Artists is not only not binding on this circuit, but it seems to
have been rejected as binding authority in its own circuit. See Children's
Healthcare, 92 F.3d at 1414-15, 1416; see also Kelley v. Metropolitan
County Bd. Of Educ., 836 F.2d 986, 990-91 (6th Cir. 1987). In Children's
Healthcare, the Sixth Circuit highlighted Allied Artists' tension with
Supreme Court jurisprudence, apparently rejecting the holding that "general
duty" provisions are sufficient for purposes of Eleventh Amendment
waiver. See 92 F.3d at 1416. See also Kelley, 836 F.2d at 990-91. Furthermore,
even Allied Artists--the panel's sole support for its "continuum"
prong--does not support the panel's argument as to the degree of "connection"
required under Young. Allied Artists states: |
| [71] | Although I disagree with Gras insofar as it declines to find Young enforcement
power in the governor's general duty to see to the execution of state
laws, I agree with the Gras result. Furthermore, I believe to be accurate
Judge Friendly's evaluation that the cases which have permitted a governor
to be joined as a defendant concerned the enforcement of programs, civil
or criminal, dealing with the relations between the state and the individual.
This valid limitation serves to preclude parties from testing the constitutionality
of state legislation by simply naming the governor as defendant, a practice
which if unchecked would effectively eviscerate the Eleventh Amendment.
Thus, to satisfy the Young fiction, as I understand it, not only must
there be a state officer who has a connection with the enforcement of
the challenged statute, but there must also be a real, not ephemeral,
likelihood or realistic potential that the connection will be employed
against plaintiffs' interests. 473 F.Supp. at 568 (emphasis added). |
| [72] | Thus, the panel's reliance on Allied Artists places it in the awkward
position of relying on a case in support of the second part of its analysis
when that case rejects the panel's conclusion as to the first part. |
| [73] | Second, the panel's approach ignores the 'state/individual' vs. 'predominately
private/private' distinction set forth in Gras: "[These cases finding
no Eleventh Amendment immunity] have been concerned with the enforcement
of programs, civil or criminal, dealing with the relations between the
state and the individual . . ." 415 F.Supp. at 1152. Indeed, the
propriety of this distinction was echoed in Allied Artists. See 473 F.Supp.
at 568. The panel's thin retort is simply that Act 825 is "designed
to implement and serve the public interest of the state." Okpalobi,
190 F.3d at 347 (citation omitted). This tautological reasoning, however,
can easily be applied to every statute: What statute of general application
is not so designed? Even those statutes on the opposite end of the continuum
(e.g., domestic relations law in Gras) are presumably enacted to serve
the public's interest in the private ordering of individuals. We therefore
doubt whether this analysis serves any real use in determining whether
a case improperly tests the constitutionality of a state statute. If Act
825, a private tort statute, is on the public interest side of the continuum,
almost anything can be said to affect the public interest. For this and
other reasons, we reject the panel's use of this rationale to resolve
the Eleventh Amendment question. |
| [74] | B. |
| [75] | In sum, the panel generated a new two-pronged test spun out of hardly
more than a wisp of authority (a single district court's ruling), while
ignoring critical factors examined by virtually all prior Eleventh Amendment
jurisprudence. For example, we note that the panel's reading failed to
note that the necessary fiction of Young requires that the defendant state
official be acting, threatening to act, or at least have the ability to
act. Young, 209 U.S. at 159 (noting that the fiction applies "where
an official claims to be acting under the authority of the state.").
It is this unconstitutional conduct, or at least the ability to engage
in the unconstitutional conduct, that makes him no longer a representative
of the sovereign. Without at least the ability to commit the unconstitutional
act by the official defendant, the fiction cannot be sustained. See, e.g.,
Fitts, 172 U.S. at 530; Children's Healthcare, 92 F.3d at 1415-16. Indeed,
if there is no act, or potential act, of the state official to enjoin,
an injunction would be utterly meaningless. Here, there is no act, no
threat to act, and no ability to act. |
| [76] | VI. |
| [77] | A. |
| [78] | We take a moment now to address the dissent's view of the Eleventh Amendment
question in this case. The dissent substantially departs from the panel
majority opinion, abandoning many of the views expressed therein and raising
theories apparently dismissed by the plaintiff-appellees.*fn28
The panel opinion, as we have noted, exhibited as its centerpiece Allied
Artists, a twenty year old Ohio district court case. The dissent now jettisons
Allied Artists as support for the panel's novel position and turns to
Title 40 of the Louisiana Revised Statutes, a statutory scheme that attempts
to review, regulate, oversee, and partially fund medical malpractice claims.
See 22C La. Rev. Stat. Ann. § 40:1299. It quickly becomes clear, however,
that Title 40 is an even less reliable ally than was Allied Artists for
the position that these defendants have enforcement powers with regard
to Act 825. |
| [79] | This is the essence of the dissent's argument as best we understand
it: Title 40 applies to all medical malpractice claims;*fn29
the Patients Compensation Fund Oversight Board ("PCFOB") must
review all malpractice claims to determine if they qualify for the damage
caps and other benefits provided by Title 40; this oversight authority
means that the PCFOB would review all medical malpractice claims based
on or related to abortion claims; the PCFOB would have discretionary authority
to deny benefits of Title 40 to defendant doctors for procedures determined
by the Board to be covered by Act 825; and, because the Governor appoints
members of the PCFOB, and because appointees of the Attorney General must
approve certain payments ultimately determined to be payable from the
Self-Insurance Fund--all the aforementioned acts authorized by Title 40--each
of the defendants has enforcement powers with respect to Act 825. The
dissent makes this argument notwithstanding the express provision of Act
825 that "[t]he laws governing medical malpractice or limitations
of liability thereof provided in Title 40 of the Louisiana Revised Statutes
of 1950 are not applicable to this Section." See § 2800.12(C)(2)
(emphasis added).*fn30 Furthermore,
the dissent makes this argument even though no official connected with
Title 40 has been named as a defendant in this case. |
| [80] | Very little need be said about this patently untenable argument. We
need not draw attention to the fact that, even under the dissent's argument,
the defendants who have been sued in this case have no enforcement connection
with Title 40, much less the statute at issue (Act 825). The most obvious--and
fatal--flaw in the dissent's effort to connect Act 825 to Title 40 is
that the argument is premised and dependent upon a plainly false assumption:
the assumption that the agencies operating under Title 40 have jurisdiction,
authority, or discretion ever to review or consider any claims brought
under Act 825. Act 825 creates a specific cause of action; Act 825 provides
that claims brought under the statute are not subject to Title 40; consequently,
any governmental bodies or agents acting under Title 40 have no authority
or jurisdiction--that is, enforcement powers--over claims brought under
Act 825. In short, the foundation of the dissent's argument, to wit, that
"[u]nder Title 40's medical malpractice system, all malpractice claims
against private and public health care providers must be reviewed by a
medical review panel," is false--the actual fact being that Title
40 applies to all medical malpractice claims except those brought pursuant
to Act 825. There is therefore no connection between Title 40 and Act
825. In concluding, however, we emphasize that, notwithstanding the dissent's
newest theory that attempts to relate Act 825 to Title 40, we should not
be diverted from the crucial and determinative consideration under Ex
parte Young and its progeny: These defendants have no ability to enforce
Act 825, a purely private tort statute, which can be invoked only be private
litigants. |
| [81] | B. |
| [82] | We turn now to comment on the various authorities addressed by the dissent.
We would first note that the dissent fails to cite any case in which a
federal court enjoined enforcement of a statute even remotely like Act
825--that is, one with private civil, but no criminal penalties. In every
case cited by the dissent to support its claim that an injunction was
proper in this case, there were simply no Eleventh Amendment or Article
III problems that would bar the court from asserting jurisdiction over
the complaint for this reason: federal jurisdiction plainly existed over
the claims for injunctive relief to strike the criminal provisions of
the statutes at issue in those cases.*fn31
When there were also civil provisions contained in these statutes they
were, without analysis, swept up and bundled as one package with the struck
criminal provisions. In no case cited by the dissent did the court address
the civil provisions separately under an Ex parte Young analysis, as we
are called upon to do today. Indeed, in assessing the value of those cases
to the issues before us today, we must conclude that it is determinative
that these cases fail to even mention Ex parte Young. |
| [83] | In sum, nothing argued or cited by the dissent suggests that there is
any enforcement connection between these defendants--the Governor and
the Attorney General--and Act 825 that satisfies either the requirements
of Ex parte Young.*fn32 It is clear
therefore to this en banc court, and we hold, alternatively, that the
defendants in this case enjoy Eleventh Amendment immunity from this suit.*fn33 |
| [84] | VII. |
| [85] | Now that we have addressed the Eleventh Amendment issues that have been
presented in this case, we turn to the question of jurisdiction under
Article III. Recently, the Supreme Court, when confronted with both an
Eleventh Amendment and an Article III question, chose to decide the case
based on Article III jurisdiction. See Calderon v. Ashmus, 523 U.S. 740,
745, 118 S.Ct. 1694 (1998) ("[We] have decided that we must first
address whether this action for a declaratory judgment is the sort of
'Article III' 'case or controversy' to which federal courts are limited.").*fn34
Calderon does not hold that a court always must, or even always should,
decide the Article III issues before addressing Eleventh Amendment issues.
Nevertheless, given that the Supreme Court has followed this path in a
case that has similarities to today's case, it is not inappropriate for
us to examine, and, if thereby warranted, to decide this case based on
the limitations Article III imposes on federal courts. |
| [86] | Under Article III of the Constitution, the federal courts have jurisdiction
over a claim between a plaintiff and a defendant only if it presents a
"case or controversy." This is a "bedrock requirement."
Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312 (1997). In this way,
the power granted to federal courts under Article III "is not an
unconditioned authority to determine the constitutionality of legislative
or executive acts." Valley Forge Christian College v. Americans United
For Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct.
752 (1982). |
| [87] | In order to establish a case or controversy sufficient to give a federal
court jurisdiction over their claims, plaintiffs must satisfy three criteria.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130
(1992). First, they must show that they have suffered, or are about to
suffer, an "injury in fact." Second, "there must be a causal
connection between the injury and the conduct complained of." Third,
"it must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision." Id. (citation omitted).
If any one of these three elements--injury, causation, and redressability-is
absent, plaintiffs have no standing in federal court under Article III
of the constitution to assert their claim. |
| [88] | In the district court, the defendants did not raise the question of
whether the plaintiffs had an Article III case or controversy with them,
the Governor and the Attorney General, and the district court did not
consider this jurisdictional question. The defendants argued only that
the plaintiff doctors and clinics lacked standing to pursue their patients'
rights. In rejecting that contention, the district court held that "[g]iven
the relationship between the intervenors and their patients, and given
the obstacles which prevent pregnant women from challenging this statute,
including a desire for privacy and the imminent mootness of their claims,
intervenors may assert third party standing and raise the right of their
patients." Okpalobi v. Foster, 981 F.Supp. 977, 980 (E.D. La. 1998).
The panel upheld that determination, finding that "the Plaintiffs
have alleged an injury in fact, including components of causation and
redressability, sufficient to make their claim a case or controversy subject
to the federal courts' Article III jurisdiction." Okpalobi, 190 F.3d
at 350. The panel further determined that plaintiffs could properly assert
third-party standing on behalf of their female patients because the plaintiffs
"have the requisite commonality and congruence with their patients'
interests to establish standing to assert their right to make abortion
decisions free of undue burden by the State of Louisiana." Id. at
353. |
| [89] | In addressing the question of federal jurisdiction under Article III,
the panel, disregarding that the defendants (the Governor and the Attorney
General) had caused no injury to the plaintiffs and could never themselves
cause any injury under the private civil scheme, nevertheless concluded
that, because "[i]t is well established that a claim of direct economic
harm visited on abortion providers by a statute is adequate to satisfy
the injury-in-fact requirement," the plaintiffs could assert standing
for themselves. Id. at 350. Furthermore, the panel essentially passed
over the causation and redressability requirements, stating only: |
| [90] | We are convinced that Article III does not require a plaintiff to plead
or prove that a defendant state official has enforced or threatened to
enforce a statute in order to meet the case or controversy requirement
when that statute is immediately and coercively self-enforcing. Id. at
349. |
| [91] | The central weakness of the panel's argument, and the fatal flaw of
the dissent's argument that follows this opinion, is that, notwithstanding
that the defendants are powerless to enforce Act 825 against the plaintiffs
(or to prevent any threatened injury from its enforcement), the plaintiffs
yet must show (1) how these impotent defendants play a causal role in
the plaintiffs' injury and (2) how these defendants can redress their
alleged actual or threatened injury. The panel's reference to the self-enforcing
nature of Act 825 is inapposite to the analysis of whether the plaintiffs
have any controversy with these defendants. That is to say, the panel
confuses the statute's immediate coercive effect on the plaintiffs with
any coercive effect that might be applied by the defendants--that is,
the Governor and the Attorney General. This confusion allows the panel
to state further: "The Plaintiffs' assertion that they will be forced
to discontinue offering legal abortions to patients because of the untenable
risks of unlimited civil liability under an unconstitutional Act, sets
forth a justiciable case or controversy between the plaintiffs and the
Governor and Attorney General of Louisiana." Id. Once the coercive
impact of the statute (coercive in that it exposes plaintiffs to unlimited
tort liability by individual plaintiffs) is understood to be distinct
from the coercive power of state officials (for example, if the State
could institute criminal or civil proceedings under the Act), the panel's
finding of causation here is without a basis. The panel's own citation
to Lujan recognizes that Article III requires "a causal connection
between the injury and the conduct complained of . . ." 504 U.S.
at 560-61 (emphasis added)--that is, here, a connection between the unwarranted
monetary judgment (the injury) and the prosecution of a lawsuit under
Act 825 by a private civil litigant (the conduct). The plaintiffs have
never suggested that any act of the defendants has caused, will cause,
or could possibly cause any injury to them. The requirements of Lujan
are entirely consistent with the long-standing rule that a plaintiff may
not sue a state official who is without any power to enforce the complained-of
statute. See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250 (1911)
(holding that the United States as defendant had no interest adverse to
the claimants); Gritts v. Fisher, 224 U.S. 640, 32 S.Ct. 580 (1912) (finding
that the defendant state official was charged with specific duties to
enforce the challenged statute and was therefore sufficiently adverse
to the plaintiffs to create an Article III controversy). |
| [92] | The plaintiffs also fail to satisfy the "redressability" requirement
of the case or controversy analysis. For all practical purposes, the injunction
granted by the district court is utterly meaningless.*fn35
The governor and attorney general have no power to redress the asserted
injuries. In fact, under Act 825, no state official has any duty or ability
to do anything. The defendants have no authority to prevent a private
plaintiff from invoking the statute in a civil suit.*fn36
Nor do the defendants have any authority under the laws of Louisiana to
order what cases the judiciary of Louisiana may hear or not hear. Because
these defendants have no powers to redress the injuries alleged, the plaintiffs
have no case or controversy with these defendants that will permit them
to maintain this action in federal court. See Muskrat, 219 U.S. at 346.*fn37 |
| [93] | In addressing Article III jurisdiction, the dissent focuses on the injury
component of the case or controversy requirement, arguing that this component
has been "visibly relaxed" in abortion cases. We do not challenge
that the plaintiffs are suffering a threatened injury. We only say that
the injury alleged by the plaintiffs is not, and cannot possibly be, caused
by the defendants--that is, these defendants will not file and prosecute
a cause of action under Act 825 against these plaintiffs; and that their
injury cannot be redressed by these defendants--that is, these defendants
cannot prevent purely private litigants from filing and prosecuting a
cause of action under Act 825 and cannot prevent the courts of Louisiana
from processing and hearing these private tort cases.*fn38
In this way, the dissent makes much the same argument--and thus incorporates
the same fatal flaw--as did the panel opinion. It continues to confuse
the coercive impact of the statute itself and the ability--or the absence
of ability--of the Governor and Attorney General to cause or redress the
impact of the statute on the plaintiffs. |
| [94] | Indeed, the dissent is silent on how the defendants cause the plaintiffs'
alleged injury. The only response the dissent seems to make concerning
redressability is that the Governor can provide some relief to physicians
sued under Act 825 by "order[ing] his agents and subordinates to
disregard Act 825 in reviewing civil claims against women's health care
providers and making their legal and factual recommendations as to liability
and damages." This argument is unavailing. First, this response overlooks
the elemental fact that a state official cannot be enjoined to act in
any way that is beyond his authority to act in the first place. If the
defendant Governor or Attorney General has no authority under state law
to issue a specific directive, then the plaintiff might as well sue any
state officer who, in turn, could direct any other state officer to carry
out the injunction orders; or, under the dissent's reasoning, why not
simply order the defendant Governor to decree that no court may entertain
any suit brought under Act 825? The dissent, of course, cites no authority
for its assertion that the Governor is clothed with power to order the
state agencies that administer Title 40 to act in a specified manner with
respect to a class of cases. This is not to say that the administrators
of Title 40 themselves could not be enjoined to do a particular act that
was within their authority--but these plaintiffs must sue those individuals
authorized to exercise the orders of the injunction. |
| [95] | Second, the redress sought by the plaintiffs' complaint is to eliminate
the initiation of any and all lawsuits under Act 825--there is nothing
in their complaint indicating in any way that plaintiffs seek the limited
liability benefits of Title 40 for lawsuits brought under Act 825. Like
the entirety of the dissent's "Title 40" argument, this suggestion
makes its first appearance in the dissent that follows this opinion, notwithstanding
that this case has been pending for nearly four years. The plaintiffs'
claim is not that Act 825 is constitutional so long as claims brought
thereunder are subject to the provisions of Title 40. Indeed, the plaintiffs
never mention Title 40, except to say that it is not applicable to any
claims brought under Act 825. Their argument is that any cause of action
alleged under Act 825 is barred as unconstitutional. Thus, there is no
redress for the claimed injury resulting from the application of this
unconstitutional statute--that is, the filing and prosecution of a private
civil action under Act 825--that can be provided by these defendants,
even under this latest theory of redressability. |
| [96] | Third, we should point out, at the risk of being repetitive, that the
matter of causation remains unsatisfied. At best, the Governor only appoints
some of the administrators of Title 40, and the Attorney General appoints
legal counsel for the Self-Insurance Fund. See La. Rev. Stat. Ann. §§
39:5(A); 40:1299.44(D); 39:1533(B); 39:1535(B)(6). This appointive power
of the defendants inflicts no injury on the plaintiffs. That is to say,
it is not the Governor or the Attorney General who inflicts the claimed
injury--it is the private plaintiff, bringing a private lawsuit under
Act 825, who causes the injury of which the plaintiffs complain. |
| [97] | Thus, even if we take it as true that abortion cases are different from
other cases concerning the requirements for injury for Article III purposes,
it is in this way--causal connection and redressability-that the dissent's
authorities nevertheless remain lacking.*fn39
In those cases, where the plaintiffs' injury may not have been imminent,
the defendants had the ability to cause and to redress the plaintiffs'
injuries.*fn40 Here, that is plainly
not the case. Consequently, there is no case or controversy between these
plaintiffs and defendants. |
| [98] | We therefore hold that the district court lacked Article III jurisdiction
to hear this claim. |
| [99] | VIII. |
| [100] | In sum, we hold that the plaintiffs have no case or controversy with
these defendants and the district court's judgment must be dismissed for
lack of federal court jurisdiction under Article III of the Constitution.
Furthermore, we have made clear in this en banc opinion that the defendants
in this case enjoy Eleventh Amendment immunity from this suit and that
the Ex parte Young exception to the Eleventh Amendment cannot be applied
under these facts. We alternatively hold, therefore, that this suit is
barred by the Eleventh Amendment.*fn41 |
| [101] | The judgment of the district court is REVERSED, VACATED, and REMANDED
for entry of judgment of dismissal. |
| [102] | PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring: |
| [103] | I concur in the judgment reversing and remanding for entry of an order
of dismissal for lack of standing. I do not concur in the treatment of
Ex parte Young. The majority opinion*fn42
reexamines the underpinnings of Ex parte Young*fn43
to support its conclusion that injunctive relief is not available here
and hence the claim is barred by the Eleventh Amendment. Despite the majority's
careful work, I am persuaded that this effort should not have been undertaken. |
| [104] | This appeal can and should be resolved by a direct and simple proposition:
there is no case or controversy. Enjoining the named defendants from enforcing
the statute will not redress the claimed wrongs. There is then no case
or controversy under Article III of the Constitution.*fn44 |
| [105] | I. |
| [106] | The question of standing - case or controversy - is logically anterior
to the question of whether there is a defense to the claim; it goes to
the court's jurisdiction and cannot be waived by the parties or conferred
by agreement. The Eleventh Amendment is also jurisdictional, but it is
jurisdiction in an anomalous form. It is a defense that may be invoked
by the state - but need not be. |
| [107] | Logic is not alone in pushing the case-or-controversy inquiry to the
forefront.*fn45 Questions of standing
and redressability are familiar. The burden of a plaintiff to plead and
prove standing at each stage of the proceeding is settled.*fn46
Stepping over this threshold inquiry to address at the outset of the suit
the defense of Eleventh Amendment immunity risks confusion.*fn47 |
| [108] | In Calderon v. Ashmus,*fn48 the
Supreme Court recognized this risk, insisting that standing be found before
considering a state's immunity under the Eleventh Amendment. It explained
that before addressing an Eleventh Amendment claim, "we must first
address whether this action for a declaratory judgment is the sort of
'Article III' 'case or controversy' to which federal courts are limited."*fn49
Whether the court was expressing a rule of sequence across cases or explaining
the practical compulsion in the case before it is not wholly certain.
At the least, similar concerns inform my hesitation here.*fn50 |
| [109] | The question of standing in this case is easily framed. We should ask
whether enjoining defendants from enforcing the statute complained of
will bar its application to these plaintiffs. The answer is no. I am persuaded
that the sued defendants have no such responsibility for enforcing the
statute. Whether that is so ought to be the beginning and the end of this
appeal. The majority acknowledges this reality but only after a long visit
with the doctrine of Ex parte Young. |
| [110] | There is another powerful argument that Eleventh Amendment immunity
ought not be treated in this case. The majority reasons that the injunction
exception to the Eleventh Amendment offered by Ex parte Young is not available
because the injunction is against officials with no enforcement power;
that with the wrong officials sued the action is against the State. But
"official-capacity actions for prospective relief are not treated
as actions against the State."*fn51
The Governor and Attorney General were sued in their official capacities
for injunctive relief. That they are the wrong officials does not alter
the relief sought. Rather, the flaw (ignoring for the moment the absence
of standing) is that if the suit is against the wrong officials, no claim
for injunctive relief has been stated. |
| [111] | II. |
| [112] | The majority and the dissent trade arguments over "the nexus between
defendants and the statute at issue." If this is the same inquiry
as standing, as it appears to be, we should be applying the doctrine of
standing. Specifically, unless nexus as deployed by the majority has something
to say to cases that meet the standing inquiry, it has no independent
utility. Treating the requisites of standing as requirements internal
to Ex parte Young is confusing, in part, because it does not necessarily
simultaneously answer the standing question. After all, a plaintiff may
have requested injunctive relief from defendants with responsibility for
enforcing a law they challenge, but is unable to plead and prove individuated
injury. |
| [113] | III. |
| [114] | Standing developed long after Ex parte Young, responding to the stress
expanding public law litigation brought to the respective roles of Article
III courts, the Congress, the Executive, and the states. It is more than
adequate to its task of vindicating these principles of federalism and
separation of powers. |
| [115] | Judge Benavides' opinion would find standing under the Declaratory Judgment
Act.*fn52 This approach has three
problems, in ascending order of difficulty. First, whether the district
court in this case granted declaratory relief is uncertain. The court
granted a preliminary injunction, questioning the constitutionality of
the challenged statute in the course of finding that there was a substantial
likelihood of success on the merits. The parties then agreed to convert
the preliminary injunction into a permanent injunction. At best, any "declaratory
relief" is only that, a conclusion implicit in the grant of injunctive
relief. Perhaps this would be a sufficient declaration, but there are
larger difficulties. |
| [116] | Second, although the Declaratory Judgment Act "brings to the present
a litigable controversy, which otherwise might only be tried in the future,"*fn53
it does not jettison traditional standing requirements.*fn54
The requirements of causation and redressability are not met here. Lack
of standing disposes of this case regardless of the relief sought - injunctive
or declaratory. The defendants could not threaten enforcement of the targeted
state law; they lack the authority to do so. If plaintiffs attempted to
sue defendants in their official capacity, acting on an assumption that
although lacking enforcement power they are obligated to defend the statute
in the abstract, the requisite concreteness of engagement is absent. This
is so even if, contrary to my view, declaratory relief is seen as here
meeting the redressability requirement of Article III. |
| [117] | Third, this case could not proceed even if case or controversy difficulties
were somehow met - if the Governor and Attorney General were seen as proper
defendants to a claim seeking declaratory relief, even though coercive
relief against them could not be granted. This is because Congress did
not and could not have created a generic exception to the Eleventh Amendment
for declaratory relief. |
| [118] | IV. |
| [119] | Some have viewed Ex parte Young as the culprit, the cause of these changes
in the public law model of cases. More to the point, some apparently see
the doctrine articulated therein as a threat to the sovereign role of
states that must be tamed. I do not share these views and fear that imposing
this additional duty upon Ex parte Young by bringing it forward, to the
front of the case or controversy inquiry, pushes the doctrine toward an
amorphous, case-by-case inquiry into its availability - a destination
affirmatively rejected by seven members of the United States Supreme Court.*fn55
I do not suggest that the majority does so here. Rather, my concern is
where the path it has selected can lead. |
| [120] | V. |
| [121] | Implicit in my resistance to the majority's approach is my view that
Ex parte Young poses no threat to the Eleventh Amendment or to the fundamental
tenets of federalism. To the contrary, it is a powerful implementation
of federalism necessary to the Supremacy Clause, a stellar companion to
Marbury*fn56 and Martin v. Hunter's
Lessee.*fn57 |
| [122] | We should wait for the case in which plaintiffs have standing, where
there is a case or controversy, before examining whether the principles
of Ex parte Young have been unduly expanded. Since such relief can never
be granted absent a case or controversy, the destination of the majority's
trek today is inevitably a narrowing of the doctrine of Ex parte Young,
rendering it either less than it has always been or an exact replication
of standing doctrine. I decline passage on that voyage. I decline because
I am persuaded that familiar principles of standing are better suited
to answer these questions with less risk to the vital role of Ex parte
Young. |
| [123] | VI. |
| [124] | The desire to drive a stake through the heart of the panel majority's
views of Ex parte Young is understandable. The panel's flawed analysis
offered a tempting target, enough that the en banc majority's lengthy
effort to erase its memory here is not without some justification. But
it pursues a ghost. The panel opinion no longer exists. It was vacated
by the order granting en banc review. The order granting en banc left
no remains to be buried and doing so implies the need to do so, itself
not the best course, to my eyes. |
| [125] | BENAVIDES, Circuit Judge, concurring in part and dissenting in part: |
| [126] | The majority, in focusing on the injunctive relief sought by the plaintiffs,
has paid too little attention to the plaintiffs' request for a declaration
that Louisiana's strict liability scheme for regulating the provision
of abortions unconstitutionally burdens a woman's right to an abortion.
In my view, the plaintiffs present a "controversy" that the
Declaratory Judgment Act and Article III require this Court to resolve.
Moreover, the Supreme Court's sovereign immunity jurisprudence does not
foreclose our ability to vindicate constitutional rights when the existence
of a state's self-executing statutory liability scheme places those rights
in jeopardy. Indeed, I am confident this case falls "on the Ex parte
Young side" of the Supreme Court's sovereign immunity jurisprudence
- that is, as in Young, I believe the duty of this Court to protect constitutional
rights and thereby ensure the supremacy of the Constitution over state
laws outweighs the sovereign right of states to immunity from suit in
federal court. For that reason, I respectfully dissent. I write separately
to explain my belief that the connection requirement on which both the
majority and dissent concentrate should be understood and analyzed in
terms of standing, and has little relevance to the interplay between Ex
parte Young and the Eleventh Amendment. |
| [127] | I. |
| [128] | I agree with the majority to the extent that it holds the plaintiffs
have no standing to seek injunctive relief. Article III standing requires
a litigant to have suffered an injury-in-fact, fairly traceable to the
defendant's allegedly unlawful conduct, and likely to be redressed by
the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S.Ct. 2130 (1992). When analyzing the plaintiffs' claim for injunctive
relief under the unusual facts of this case, I am constrained by Supreme
Court precedent to find the causation and redressability requirements
lacking. However, unlike the majority of the Court, I do not believe the
inquiry ends here. In addition to seeking injunctive relief, the plaintiffs
in this case brought suit under the Declaratory Judgment Act, 28 U.S.C.
§ 2201, which provides a mechanism for pre-enforcement review of a statute.*fn58
See Steffel v. Thompson, 415 U.S. 452, 478, 94 S.Ct. 1209, 1225 (1974)
(Rehnquist, J., concurring) ("[M]y reading of the legislative history
of the Declaratory Judgment Act of 1934 suggests that its primary purpose
was to enable persons to obtain a definition of their rights before an
actual injury had occurred . . .).*fn59
Although injunctive relief is not proper, the Supreme Court has repeatedly
recognized "that different considerations enter into a federal court's
decision as to declaratory relief, on the one hand, and injunctive relief,
on the other." Roe v. Wade, 410 U.S. 113, 166, 93 S.Ct. 705, 733
(1973) (citing Zwickler v. Koota, 389 U.S. 241, 252-255, 88 S.Ct. 391,
397-399 (1967)). Based on my reading of Supreme Court precedent, I find
the plaintiffs have standing to bring an action for declaratory relief. |
| [129] | It is familiar doctrine that the Declaratory Judgment Act does not itself
grant federal jurisdiction. Instead, jurisdiction under the Act depends
on the existence of an "actual controversy" in a constitutional
sense. Aetna Life Ins. Co., 300 U.S. at 239-40, 57 S.Ct. at 463-64 (1937);
Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997).
In determining whether plaintiffs have standing to bring their claim pursuant
to the Declaratory Judgment Act the basic inquiry is whether there exists,
under the facts alleged, "a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment." Maryland Cas. Co.
v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512 (1941).*fn60
Because I find that the plaintiffs have presented an actual controversy
and have legal interests adverse to the named defendants, the Attorney
General and Governor of Louisiana, I believe we have jurisdiction under
Article III to consider their request for declaratory relief. |
| [130] | In Steffel v. Thompson, the Supreme Court analyzed the appropriateness
of declaratory relief, specifically the existence of an actual controversy,
independently from the propriety of issuing an injunction. 415 U.S. 452,
469-70, 94 S.Ct. 1209 (1974). The plaintiff in Steffel sought to distribute
handbills protesting United States' involvement in the Vietnam War on
the sidewalk near a local shopping center. Several times the plaintiff
was asked to leave and was eventually threatened with arrest for criminal
trespass. Id. at 454-56. The plaintiff sought declaratory relief that
the state trespassing statute, as applied, interfered with the exercise
of his constitutional rights. Id. at 454-55. The Supreme Court held that
the plaintiff demonstrated an actual controversy because the plaintiff
suffered threats of injury that were not "imaginary or speculative"
and had not been rendered moot. Id. at 458-60 (contrasting Younger v.
Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 749 (1971) and Golden v. Zwickler,
394 U.S. 103, 89 S.Ct. 956 (1969)). Since the plaintiff faced a genuine
threat of injury absent a declaration by the Court, an "actual controversy"
existed and declaratory relief was appropriate. |
| [131] | Recently, the Supreme Court reaffirmed that "Steffel . . . falls
within the traditional scope of declaratory judgment actions because it
completely resolved a concrete controversy susceptible to conclusive judicial
determination." Calderon v. Ashmus, 523 U.S. 740, 749, 118 S.Ct.
1694 (1998). In Calderon, inmates sought a declaration of whether the
state of California could raise the expedited review provisions of the
Antiterrorism and Effective Death Penalty Act as a defense. Id. at 742.
The Court distinguished Steffel on several grounds and found that the
petitioners presented no actual controversy, and thus lacked standing
under the Declaratory Judgment Act. Id. at 749. First, a declaration of
California's status as a qualifying state would only resolve a discrete
issue and not the underlying controversy - the plaintiffs' habeas claims.
Id. at 469-70. More importantly, in contrast to Steffel, the statute in
Calderon had "no coercive impact on the legal rights or obligations
of either party." Id. In other words, the class of inmates would
not have incurred any detriment by filing their habeas petitions prior
to a ruling on whether California was a qualifying state. The failure
to show any such injury removed the inmates' action from the traditional
bounds of declaratory relief. |
| [132] | The present case is similar to Steffel in that the plaintiffs have demonstrated
an injury-in-fact that will be redressed by the requested declaration.
Initially, the dispute presented by the plaintiffs is neither hypothetical
nor speculative, rather the dispute is founded upon the definite and concrete
consequences that will flow from the existence of Act 825.*fn61
The majority does not seem to dispute, nor could it, that the plaintiffs
will suffer an injury-in-fact arising from enforcement of the Act. But
beyond enforcement, Act 825, by its mere existence, coerces the plaintiffs
to abandon the exercise of their legal rights lest they risk incurring
substantial civil liability. With respect to the Act's coercive effect,
this case presents what this Court has recognized as the classic situation
for declaratory relief: "where the plaintiff is put to the Hobson's
choice of giving up an intended course of conduct which he believes he
is entitled to undertake or facing possible severe civil or criminal consequences
if he does undertake it." Texas Employers' Ins. Assoc. v. Jackson,
862 F.2d 491, 507 n.22 (5th Cir. 1988) (en banc); see also Nat'l. Rifle,
132 F.3d at 279 (6th Cir. 1997) ("[P]re-enforcement review is usually
granted under the Declaratory Judgment Act when a statute 'imposes costly,
self-executing compliance burdens or if it chills protected [constitutional]
activity.'") (quoting Minnesota Citizens Concerned for Life v. Fed.
Election Comm'n, 113 F.3d 129, 132 (8th Cir. 1997)). Further, this injury
to the plaintiffs is directly traceable to the promulgation of Act 825
and will be redressed by a declaration of the statute's constitutionality.
Unlike Calderon, a declaration in the present case completely resolves
the underlying controversy - the constitutionality of the statute's chilling
effect. Absent a declaration on the constitutionality of Louisiana's strict
liability regime, the plaintiffs will be forced to confront the Hobson's
choice that the Declaratory Judgment Act was intended to prevent.*fn62 |
| [133] | Given the plaintiffs' demonstration of an appreciable injury, the inquiry
turns to whether the Governor or Attorney General has a legal interest
adverse to that of the plaintiffs. I find the Attorney General has a sufficient
legal interest in the constitutionality of the state's statute. This interest
is recognized in both federal and Louisiana statutes, which require notification
of the Attorney General in any case, civil or criminal, where the constitutionality
of a state statute is at issue. La. Code Civ. Proc. Ann. art. 1880; 28
U.S.C. § 2403. In such cases, the Attorney General is entitled to present
argument on the question of constitutionality. Id. Finding the Attorney
General has a sufficient legal interest is also consistent with the underpinnings
of the standing requirement. In this regard, the Supreme Court has inquired
whether the parties "[h]ave . . . such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions?" Baker v. Carr,
369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). I have no
doubt that the Attorney General's interest in the constitutionality of
the state's laws guaranteed a strong advocate and served to identify and
develop for this Court, and the district court, the relevant arguments. |
| [134] | The concreteness of the engagement and the sufficiency of the remedy
in this case are confirmed by Supreme Court jurisprudence that "has
visibly relaxed . . . traditional standing principles in deciding abortion
cases." See Margaret S. v. Edwards, 794 F.2d 994, 997 (5th Cir. 1986)
(Higginbotham, J.). In Doe v. Bolton, the Supreme Court found that physicians
presented a justiciable controversy because the statute at issue was designed
to operate directly against them, despite the fact that none of them had
been prosecuted or even threatened with prosecution. 410 U.S. 179, 188,
93 S.Ct. 739, 745 (1973). Likewise, the physicians and clinics in this
case are the direct targets of Louisiana's statute. These plaintiffs'
injury is as concrete as that alleged by the plaintiffs in Doe. With respect
to redressability, I agree that it makes little sense to enjoin the Attorney
General or Governor from doing that which they have no power to do within
a self-executing liability statute - enforce the statute. Yet, as noted
above, enforcement of the statute is not the sole cause of injury to the
plaintiffs. The mere existence of the statute causes concrete injury.
The requested declaration sufficiently redresses that injury by granting
the plaintiffs a substantial basis for confidence in the constitutionality
of their conduct. See Roe, 410 U.S. at 167, 93 S.Ct. at 783 (refusing
to address the propriety of injunctive relief on the basis that declaratory
relief sufficiently redressed the plaintiffs' injury). Because the plaintiffs
have demonstrated an appreciable injury that this Court can redress through
a conclusive declaration of the statute's constitutionality, they have
presented an actual controversy and Article III obliges us to act. |
| [135] | II. |
| [136] | Having determined that the plaintiffs present a justiciable controversy,
I turn to Judge Jolly's conclusion that the Eleventh Amendment renders
this Court "powerless to act" on the constitutionality of a
private enforcement scheme.*fn63 Judge
Jolly reaches this conclusion by misconstruing Ex parte Young as a narrow
exception to the Eleventh Amendment's general directive that states are
immune from suit in federal court. In this regard, his opinion neglects
our constitutional responsibility, expressed in Young, to redress ongoing
violations of federal law and thus insure the supremacy of the Constitution.*fn64
Of course, "the need to promote the supremacy of federal law must
be accommodated to the constitutional immunity of the States." Pennhurst,
465 U.S. at 105-06. Accordingly, "[a]pplication of the Young exception
must reflect a proper understanding of its role in our federal system
and respect for state courts." Idaho v. Coeur d' Alene Tribe of Idaho,
117 S.Ct. 2028, 2034 (1997) (majority opinion). The Supreme Court's limits
on Young thus consider the basic requirement that federal courts uphold
the supremacy of the Constitution in light of the practical effect of
requested relief on state sovereignty. After considering these limits,
I am convinced that when a plaintiff has standing to challenge the existence
of a state's self-executing, private liability scheme that currently infringes
constitutional rights, federal courts have jurisdiction to redress constitutional
violations. |
| [137] | The plaintiffs' lawsuit requires that we respect the fundamental role
of Ex parte Young in our federal structure. In reconciling the competing
constitutional commandments in the Eleventh and Fourteenth Amendments,*fn65
the Young court concluded that federal courts, in order to preserve an
individual's rights guaranteed in the Constitution, must have jurisdiction
to prevent the enforcement of unconstitutional state legislation. Young,
209 U.S. at 159-60. The Court reasoned that the Eleventh Amendment could
not confer immunity on a state officer to the extent that the state officer
acted in an unconstitutional manner.*fn66
Since 1908, the Court has reiterated time and again that the values embodied
in Ex parte Young are fundamental to the concept of federalism embedded
in our Constitution.*fn67 In deciding
whether the Young doctrine extends to cases such as that presented by
the plaintiffs, our duty is to "ensure that the doctrine of sovereign
immunity remains meaningful, while also giving recognition to the need
to prevent violations of federal law." Coeur d' Alene, 117 S.Ct.
at 2034 (majority opinion). |
| [138] | The plaintiffs' suit implicates the precise concerns regarding the supremacy
of constitutional rights that precipitated the Young line of cases. To
be sure, the case presented by the plaintiffs does not fall into the traditional
Young paradigm - no Louisiana state officer will enforce Act 825's civil
penalty against doctors that perform abortions, likewise no doctor will
be prosecuted by the state for performing an abortion. Nevertheless, the
Act's unique authorization of private strict liability lawsuits against
providers of abortions burdens the right to an abortion to the same extent
as legislation granting an Attorney General the power to prosecute or
fine individuals for performing abortions. That the private sector, not
the state, enforces penalties for performing abortions does not alter
the fundamental effect of Louisiana's scheme - doctors will refrain from
performing abortions because of the financial consequences involved and
women in Louisiana will face a significant burden in exercising their
constitutional right to receive an abortion. See Jackson, 862 F.2d at
507 (recognizing that both civil and criminal penalties could chill constitutional
conduct). Likewise, the structural anomaly of Act 825 should not render
Louisiana any more immune from challenge in federal court. This case presents
a context in which Ex parte Young must operate to afford meaningful protection
for rights guaranteed by the Constitution. |
| [139] | Though Judge Jolly neglects to consider fully the aspects of Ex parte
Young supporting federal jurisdiction to hear cases involving private
schemes, very real concerns about protecting the sovereign immunity of
the states animate his opinion. That opinion, however, ignores both practical
reality and recent Supreme Court jurisprudence regarding the role of officials
sued in Ex parte Young actions. Judge Jolly seems to understand the connection
requirement that serves as the foundation for his Eleventh Amendment analysis
as a mechanism for ensuring that the state officer, rather than the state
itself, is the object of the litigation. In this sense, the opinion's
connection requirement assumes that the fiction of Ex parte Young has
some real meaning in the Eleventh Amendment context - that it is the individual
officer, not the state itself that is the real party in interest. This
is simply not the case. For many years, the Supreme Court has shaped the
scope of the Ex parte Young exception as if the state officer were the
state. See, e.g., Coeur d' Alene, 117 S.Ct. at 2034 (majority opinion)
("Th[e] commonsense observation of the State's real interest when
its officers are named as individuals has not escaped notice or comment
from this Court, either before or after Young.") (citations omitted).
Were the state not the real party in interest in suits brought under Ex
parte Young, the Supreme Court could never find the necessary state action
to support a violation of the 14th Amendment. See Home Telephone. &
Telegraph. Co. v. City of Los Angeles, 227 U.S. 278, 283-84 (1913) (recognizing
a distinction between official action under the Fourteenth Amendment and
official action for purposes of the Eleventh Amendment). Similarly, the
provision of the Federal Rules of Civil Procedure providing for the automatic
substitution of the name of one state official for the name of his predecessor
would make no sense in litigation under Ex parte Young. See Fed R. Civ.
P. 25(d) (1999). Indeed, Judge Jolly's own characterization of Ex parte
Young as an exception to the Eleventh Amendment evinces an understanding
that Young allows the state to be sued, albeit through its officers, when
constitutional questions are raised and prospective relief is sought. |
| [140] | In developing the connection requirement as a component of the Eleventh
Amendment's protection of state sovereignty, Judge Jolly's opinion attempts
to spin the Young fiction into reality. Yet, the opinion's connection
requirement turns reality on its head, granting a state broader immunity
from suit in federal court when its officers are not directly involved
in the enforcement of an unconstitutional act than when the officers are
directly involved. That position is simply untenable. Although language
in Young may support the connection requirement defined in Judge Jolly's
opinion, the Supreme Court's modern standing doctrine has subsumed the
connection inquiry. The standing requirements of injury-in-fact, causation,
and redressability parallel the majority's requirement that state officers
have "some connection with the enforcement of the act" alleged
to be unconstitutional or be "specially charged with the duty to
enforce the statute" and be threatening to exercise that duty.*fn68
Perhaps for this reason, Judge Jolly's opinion does not cite a single
modern Supreme Court case that relies on its connection requirement to
support dismissal of an Ex parte Young action on Eleventh Amendment grounds.
By analyzing the connection requirement in terms of standing, the Supreme
Court has retained the limit, but avoided the conundrum of increasing
the scope of Eleventh Amendment protection as the role of the state in
an allegedly unconstitutional statute decreases. This Court must analyze
the proper scope of Young in light of reality rather than fiction. Reality
requires examination of the limits that the Supreme Court has consistently
placed on Young and determining whether those limits apply in the present
context.*fn69 |
| [141] | Unlike Judge Jolly's connection requirement, the Supreme Court's limits
on Ex parte Young have focused on the extent to which federal litigation
will interfere with a state's sovereign rights. The Supreme Court's principal
limit has been on the nature of the relief sought: Ex parte Young cannot
be used to expose states to retroactive monetary damages. Edelman v. Jordan,
94 S.Ct. 1347, 1362 (1974); see also Hutto v. Finney, 437 U.S. 678 (1978)
(allowing Ex parte Young plaintiffs to receive monetary relief that is
clearly ancillary to non-monetary prospective relief). This limit reflects
both historical and practical considerations. The "shock of surprise"
following the Supreme Court's decision in Chisholm that led to the passage
of the Eleventh Amendment was triggered by the fear that individuals would
be able to use the federal courts to collect large debts from the states.
See Principality of Monaco v. Mississippi, 54 S.Ct. 745, 749 (1934). Thus,
the prohibition on seeking monetary relief against a state in federal
court addresses the historical concerns that existed at the time the Constitution,
and subsequently the Eleventh Amendment, were ratified. From a practical
standpoint, this limit safeguards one of the most important elements of
sovereignty - the ability to independently manage and distribute public
revenues. At the same time, the Court's allowance of prospective injunctive
or declaratory relief provides a mechanism for safeguarding the ultimate
supremacy of our federal constitution and the federal system which it
created. See Coeur d' Alene at 2040; id. at 2046 (O'Connor, J., concurring)
("When a plaintiff seeks prospective relief to end an ongoing violation
of federal rights, ordinarily the Eleventh Amendment poses no bar.");
Green, 106 S.Ct. at 426 ("[T]he availability of prospective relief
of the sort awarded in Ex parte Young gives life to the Supremacy Clause.");
Milliken v. Bradley, 97 S.Ct. 2749, 2761-62 (1977). |
| [142] | The Supreme Court has applied its limits on the scope of Young pragmatically,
guided by the substantive effect of the remedy sought rather than the
form alone. In this regard, even injunctive or declaratory relief that
substantially interferes with a state's sovereignty may be barred by the
Eleventh Amendment when constitutional concerns are not at issue. Thus,
in Coeur d' Alene, a majority of the Supreme Court held that the plaintiff
Indian tribe could not receive injunctive or declaratory relief that would
in effect function like a quiet title action against the state of Idaho.
See Coeur d' Alene, 117 S.Ct. 2044 (O'Connor, J., concurring). Though
the majority of the Court clearly rejected the case-by-case balancing
approach proposed by Justice Kennedy, the Court also recognized that the
Young - Eleventh Amendment inquiry had to transcend form and inquire into
substance. Judge Jolly's approach is flawed in that it limits Ex parte
Young haphazardly without any consideration of the constitutional rights
at stake or how the relief sought interferes with states' rights. |
| [143] | In the present case, the plaintiffs challenge the constitutionality
of state legislation and thus invoke Young's concern regarding the power
of the federal courts to vindicate constitutional rights. Moreover, the
form of relief that they seek - a declaration of unconstitutionality -
is the least intrusive available.*fn70
In Steffel v. Thompson, the Supreme Court recognized the unique nature
of and "different considerations" involved with granting declaratory
relief. Steffel, 415 U.S. at 469-70. The Court has disregarded the distinction
between declaratory and injunctive relief only when "principles of
federalism militated altogether against federal intervention in a class
of adjudications." Id. at 472. For example, in Samuels v. Mackell,
401 U.S. 66, 91 S.Ct. 764 (1971), the Court concluded the issuance of
a declaration of a statute's constitutionality during a pending state
proceeding would offend a principle notion of federalism - "that
state courts have the solemn responsibility, equally with the federal
courts 'to guard, enforce, and protect every right granted or secured
by the constitution of the United States.'" Steffel, 415 U.S. at
460-461 (quoting Robb v. Connelley, 111 U.S. 624, , 637, 4 S.Ct. 544 (1884)).
However, "[w]hen no state proceeding is pending and thus considerations
of equity, comity, and federalism have little vitality, the propriety
of granting federal declaratory relief may properly be considered independently
of a request for injunctive relief." Id. at 462. Far from precluding
our Court from considering the merits of a plaintiff's request for declaratory
relief, principles of federalism compel our Court to address alleged constitutional
violations when, as in this case, a plaintiff successfully establishes
the existence of a continuing controversy.*fn71 |
| [144] | III. |
| [145] | The avenue to the federal courts opened by Ex parte Young should be
available when the plaintiff (1) can establish an actual controversy involving
alleged constitutional violations; and (2) seeks declaratory relief that
does not in substance interfere with sovereign rights in ways specifically
prohibited by the Supreme Court, such as effectively awarding monetary
damages against a state or preempting ongoing state proceedings. This
approach neither casts aside the Young fiction, nor crafts a new "declaratory
judgment exception" to the Eleventh Amendment. Rather, my approach
reflects a principled and necessary application of the Ex parte Young
doctrine. Though I agree with the majority's conclusion that the injunction
against the named defendants was improper, I find that the plaintiffs
have presented an actual controversy that is ripe for declaratory relief.
Moreover, in my view, the Eleventh Amendment does not impede the plaintiffs'
ability to pursue that relief in a federal forum. Accordingly, I concur
with the majority's opinion that the plaintiffs' injunction should be
dismissed, but dissent to the extent that the majority opinion undermines
the district court's power to issue the underlying declaration on Act
825's constitutionality. |
| [146] | ROBERT M. PARKER, Circuit Judge, dissenting: |
| [147] | I respectfully dissent. Judge Jolly's attempt to excessively narrow
Ex parte Young's scope garners only a plurality of this court, and therefore,
to use his language, it "is not binding authority to any." I
write to note his flawed treatment of Young and to present the traditional
jurisprudential view of its scope, and to respond to the opinion to the
extent it represents the court's decision to dismiss this action against
Appellants for lack of a "Case or Controversy." |
| [148] | I. |
| [149] | I start by observing that the court's decision does not entirely dispose
of this action because the State remains as a named defendant. Appellees
initially sued the Governor and the Treasurer in the district court. The
Governor and Treasurer moved to dismiss per Fed. R. Civ. P. 12(b)(6),
alleging that the Treasurer should be dismissed for failure to state a
claim. The parties then stipulated to substitute the State for the Treasurer
as a named defendant, and Appellants withdrew the motion to dismiss as
moot. Appellants, including the State, then filed an answer against Appellees'
claims. The State proceeded to litigate this action on the merits, never
questioning the existence of jurisdiction until the panel dissent, sua
sponte, raised the Eleventh Amendment and standing arguments. Therefore,
the district court's injunction is unaffected with respect to the State. |
| [150] | II. |
| [151] | A. |
| [152] | Act 825 is yet another attempt by the State to violate federal constitutional
rights as construed by federal courts. As Judge Higginbotham observed: |
| [153] | This appeal is the latest episode in a long effort by Louisiana to exercise
its police power over a practice to which the courts have given considerable
protection. Indeed, the state seeks to "regulate abortion to the
extent permitted by the decisions of the United States Supreme Court."
La. Rev. Stat. Ann. § 40:1299.35.0 (West Supp 1986). Although one would
not think that there is anything inherently suspect about a state's undertaking
to regulate in the abortion area, Louisiana has repeatedly encountered
constitutional objections to portions of its regulatory schemes. Margaret
S. v. Edwards, 794 F.2d 994, 996 (5th Cir. 1986) (footnote omitted); see
22C La. Rev. Stat. Ann. 40:1299.35.0 (West 1992) (expressing "legislative
intent" to defy Supreme Court authority on abortion). |
| [154] | After a long history*fn72 of restricting a woman's right to choose abortion, the State, by enacting Act 825, has now changed tactics and is attempting to ban abortion altogether by creating a private cause of action imposing unlimited liability on anyone performing an abortion. As the majority admits, Act 825 exposes anyone to "unlimited tort liability for any damage caused by the abortion procedure to both mother and 'unborn child.'" Supra at __. Liability is imposed for any "injury" to an "unborn child," which means that liability can be imposed for the mere act of performing an abortion itself. Moreover, the person performing the abortion cannot avoid liability by obtaining informed consent from the patient. Informed consent "does not negate [the] cause of action, but rather reduces the recovery of damages." § 9:2800.12C(1). This is in stark contrast to the existing civil liability provision of the State's informed-con |