|||IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
|||March 12, 2001
|||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,
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.
|||Before King, Chief Judge, Jolly, Higginbotham, Davis, Jones, Smith,
Wiener, Barksdale, Emilio M. Garza, DeMOSS, Benavides, Stewart, Parker,
and Dennis, Circuit Judges.*fn1
|||The opinion of the court was delivered by: E. Grady Jolly, Circuit Judge
|||Appeal from the United States District Court for the Eastern District
|||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
|||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.
|||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.
|||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
|||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.
|||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.
|||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.
|||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.
|||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.
|||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.
|||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.
|||Young, in relevant part, reads:
|||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).
|||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
|||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
|||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.
|||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
|||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).
|||The court rationalized this relationship requirement by reference to
the core constitutional principle embodied in the Eleventh Amendment:
|||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.
|||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.
|||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.
|||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:
|||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
|||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.
|||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
|||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:
|||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.
|||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
|||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).
|||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.
|||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.
|||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.
|||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.
|||We now consider the application of the Young principle to the facts
in the case before us.
|||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.
|||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
|||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.
|||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
|||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
|||[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.
|||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):
|||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
|||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:
|||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.
|||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.
|||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.
|||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.
|||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:
|||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).
|||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.
|||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.
|||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.
|||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.
|||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.
|||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
|||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.
|||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
|||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.
|||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.
|||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.
|||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
|||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:
|||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
|||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).
|||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
|||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.
|||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.
|||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.
|||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.
|||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.
|||We therefore hold that the district court lacked Article III jurisdiction
to hear this claim.
|||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
|||The judgment of the district court is REVERSED, VACATED, and REMANDED
for entry of judgment of dismissal.
|||PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
|||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.
|||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
|||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.
|||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
|||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
|||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.
|||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.
|||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
|||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.
|||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
|||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.
|||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.
|||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.
|||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
|||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
|||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.
|||BENAVIDES, Circuit Judge, concurring in part and dissenting in part:
|||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.
|||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.
|||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.
|||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.
|||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.
|||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
|||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.
|||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.
|||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
|||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).
|||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.
|||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.
|||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
|||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).
|||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.
|||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
|||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
|||ROBERT M. PARKER, Circuit Judge, dissenting:
|||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."
|||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.
|||Act 825 is yet another attempt by the State to violate federal constitutional
rights as construed by federal courts. As Judge Higginbotham observed:
|||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).
|||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-consent law, which provides a complete
defense to malpractice claims if the physician complies with the law's
extensive requirements. 22C La. Rev. Stat. Ann. § 40:1299.35.6H (West
2000). Further, Act 825 provides no defense to malpractice suits for abortions
performed in case of medical necessity or to protect the health of the
patient. Finally, Act 825's mischief is not limited to abortion providers.
It covers a broad range of women's health care providers, including physicians
treating serious medical conditions such as infection or trauma, the treatment
for which may include medically necessary abortion. It also includes manufacturers
of contraceptives and the physicians and pharmacists who prescribe them.
Thus, Act 825 imposes strict liability to anyone performing an abortion.
|||Such provisions confirm that Act 825 constitutes an undue burden on
a woman's right to choose an abortion because it has the purpose and effect
of placing a substantial obstacle hindering the exercise of that right.
See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 877
(1992) (joint opinion). By exposing any person performing an abortion
to strict liability regardless of the person's compliance with existing
law, Act 825 is not designed to help a woman's choice, but to eliminate
that choice by effectively shutting down abortion providers. See id.;
Hope Clinic v. Ryan, 195 F.3d 857, 876, 881 (Posner, C.J., dissenting).
The fact that compliance with informed consent regulations does not negate
liability proves that Act 825 is not designed to help a woman's choice.
Moreover, because it is undisputed that Act 825 will force Appellees,
who provide substantially all of the abortion services within Louisiana,
to cease operations, Act 825 places a substantial obstacle on the right
to choose an abortion. Casey, 505 U.S. at 877; Planned Parenthood v. Miller,
63 F.3d 1452, 1465 (8th Cir. 1995).
|||In addition, it is clear that the State has enacted Act 825 in an attempt
to circumvent federal court decisions upholding the right to choose an
abortion. The State's abortion code is codified in Title 40 of its Revised
Statutes governing "Public Health and Safety," and contains
numerous regulations the violation of which gives rise to criminal and
civil penalties. The State has buried Act 825 in its "Civil Code
Ancillaries" section of its Revised Statutes, providing only civil
remedies to private parties. By privatizing the enforcement of unlimited
monetary damages, which is undoubtedly a state-sanctioned penalty, the
State is attempting to avoid defending a patently unconstitutional law
while simultaneously effecting a coercive impact so drastic that abortion
providers have no choice but to cease operations. This purpose is illegitimate
not only because Act 825 unduly burdens a constitutionally protected right,
but also because it seeks to evade judicial review. However, Act 825 is
not entirely novel in form; federal courts have consistently declared
similar statutes to be unconstitutional.
|||Since Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S.
179 (1973), individual women, abortion providers, and clinics have invoked
the federal judicial power to challenge abortion regulations by bringing
actions pursuant to Ex parte Young, 209 U.S. 123 (1908), for declaratory
and injunctive relief against state officials. Notwithstanding the fact
that the Roe plaintiff's pregnancy had terminated and that no prosecution
was threatened against her, the Supreme Court permitted her to challenge
Texas's criminal abortion law by suing a district attorney. Roe, 410 U.S.
at 124-25. Similarly, the Court extended standing to abortion providers
in Doe notwithstanding the fact that none were prosecuted or threatened
with prosecution under Georgia's abortion law. Doe, 410 U.S. at 188. While
earlier abortion regulations imposed criminal liability for their violation,
the inclusion of civil liability did not prevent aggrieved plaintiffs
from challenging such regulations even though named defendants had no
power to enforce such actions. E.g., Casey, 505 U.S. at 888; Colautti
v. Franklin, 439 U.S. 379, 383-84 (1979); Planned Parenthood of Cent.
Mo. v. Danforth, 428 U.S.52, 83-84 (1976).
|||In Casey, the Supreme Court retained Roe's essential holding and established
the undue burden test for reviewing the constitutionality of state interference
with a woman's right to choose an abortion. 505 U.S. at 875 (joint opinion).
Significantly, the plaintiffs in Casey consisted of abortion providers
and clinics suing, on behalf of their patients, the Pennsylvania governor
and attorney general, just as in this case. The plaintiffs brought suit
before the effective dates of the challenged laws, just as in this case.
The Court declared, inter alia, Pennsylvania's spousal consent statute,
which made a physician performing an abortion on a married woman without
her spouse's consent liable to the spouse for civil damages, unconstitutional.
Id. at 887-98. The Court reasoned that such provision would impose a substantial
obstacle to the woman's ability to obtain an abortion and would deter
most women from obtaining an abortion as if the state had completely outlawed
abortions. Id. at 893-94. Such reasoning forms the basis of Appellees'
claims in this case.
|||In recent years, several circuits, including this court, have reviewed
challenges to state abortion statutes under the Roe and Casey models and
reached the merits of such challenges even when they included civil liability
provisions not enforced by the state officers. See, e.g., Causeway Med.
Suite v. Foster, 221 F.3d 811 (5th Cir. 2000) (Jolly, J.), aff'g, Causeway
Med. Suite v. Foster, 43 F. Supp. 2d 604 (E.D. La. 1999) (enjoining Louisiana
governor and attorney general from enforcing the State's partial-birth
abortion statute, 22C La. Rev. Stat. Ann. § 40:1299.35.3, recodified in
§ 40:1299.35.16 (West Supp. 2000), which, inter alia, provided a civil
cause of action for damages against an abortion provider who violates
the statute); Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th
Cir. 1997) (declaring unconstitutional Ohio abortion statute's provision
of strict civil liability for compensatory, punitive, and exemplary damages
as well as costs and attorney's fees against the physician for certain
late-term abortions); Miller, 63 F.3d at 1456 n.5. & 1467 (striking
down provision of South Dakota abortion statute creating a civil cause
of action for punitive and treble actual damages to a minor and parent,
and declaring that "[t]he potential civil liability for even good-faith,
reasonable mistakes is more than enough to chill the willingness of physicians
to perform abortions in South Dakota."). But see Summit Med. Assocs.,
P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999) (holding that the Alabama
governor, attorney general, and district attorneys were not proper defendants
for the plaintiffs' challenge to the civil liability provision of Alabama's
abortion statute); Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en
banc) (relying on Summit Medical and dismissing the plaintiffs' challenge
to Illinois and Wisconsin partial-birth-abortion statutes providing, inter
alia, a civil cause of action because defendants--attorneys general and
prosecutors--did not enforce such provisions), vacated on other grounds,
147 S. Ct. 1001 (2000).
|||The important lesson from the above decisions is that they involved
actions brought pursuant to Young to enjoin state governors, attorneys
general, and prosecutors from enforcing allegedly unconstitutional statutes
before they became effective. While the challenged statutes contained
both criminal and civil liability provisions, courts nonetheless reached
the merits of the plaintiffs' challenge to determine whether the statutes,
including the civil liability provisions, imposed an undue burden on a
woman's right to choose an abortion. Only the Seventh and Eleventh Circuits
dismissed the plaintiffs' challenge to the civil liability provisions
for lack of jurisdiction.
|||Under the relevant authority discussed above, we are not powerless to
act in reviewing the judgment of the district court. Act 825 is similar
to the statutes that were challenged pursuant to Young in the above decisions,
but is also different because it only imposes civil liability. However,
that difference should not conceal the fact that the State, by enacting
Act 825, is attempting to regulate abortion providers by exposing them
to unlimited strict liability for the mere act of performing an abortion.
Such exposure is designed to eradicate all abortions by effectively shutting
down Appellants' operations, something the State cannot do directly or
indirectly. When this staggering effect is considered with the State's
patently illegitimate purpose of unduly burdening the right to abortion
while evading judicial review by enacting Act 825, the court's decision
to dismiss this action excessively narrows the scope of Young's principles
and undermines the supremacy of federal rights.
|||The plurality's most egregious error lies in its flawed and unnecessary
revisionist interpretation of Smyth v. Ames, 169 U.S. 466 (1898), Fitts
v. McGhee, 172 U.S. 516 (1899), and Young.*fn73
The plurality's interpretation is simply unsupported by Young's express
language and holding. In Young, the Supreme Court stated that the suit
against the Nebraska attorney general in Smyth was not against the state
because "[t]here was no special provision in the statute as to rates,
making it the duty of the attorney general to enforce it, but, under his
general powers, he had authority to ask for a mandamus to enforce such
or any other law." Young, 209 U.S. at 154 (emphasis added). After
citing decisions supporting this holding, the Court stated:
|||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 an
unconstitutional act, violating the Federal Constitution, may be enjoined
by a Federal court of equity from such action. Id. at 155-56 (emphasis
|||Then, the Court, as the plurality correctly notes, distinguished Fitts
from Smyth by noting that in Fitts
|||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 (emphasis
|||The Court restated Fitts' holding as:
|||In making an officer of the state a party defendant in a suit to enjoin
the enforcement of an act alleged to be unconstitutional, it is plain
that such officer must have some connection with the enforcement of the
act, or else it is merely making him a party as a representative of the
state, and thereby attempting to make the state a party. Id. at 157.
|||Most importantly, the plurality errs by not recognizing that Young limited
Fitts' "close official connection" requirement by stating that
|||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. The fact that the state officer,
by virtue of his office, has some connection with the enforcement of the
act, is the important and material fact, and whether it arises out of
the general law, or is specially created by the act itself, is not material
so long as it exists. Id. (emphasis added).
|||In contrasting Smyth and Fitts, the Court in Young stated that Smyth
involved "state officers specially charged with the execution of
a state enactment," and that such "special charge" was
"sufficiently apparent when such duty exists under the general authority
of some law, even though such authority is not to be found in the particular
act. It might exist by reason of the general duties of the officer to
enforce it as a law of the state." Id. at 158 (emphasis added). The
Court concluded that the officers in Fitts "had no duty at all with
regard to the act." Id. (emphasis added). The significance of all
this is that in Young, the Court departed from Fitts' close connection
or special relation requirement by inferring "some connection"
to the challenged act from the attorney general's general duty to enforce
Minnesota's laws and by virtue of his office. Id. at 160-62. In light
of Young's interpretation of Fitts, it is flatly wrong to assert Young
and Fitts are consistent. See City of Altus v. Carr, 255 F. Supp. 828
(N.D. Tex.) (three-judge court), aff'd, 385 U.S. 35 (1966) (mem.); cf.
Clyde E. Jacobs, The Eleventh Amendment and Sovereign Immunity 130-42
(1972) (noting the inconsistency between Fitts and Young).
|||Moreover, Justice Harlan, who wrote Smyth and Fitts, dissented in Young
by stating that Fitts "is not overruled, but is, I fear, frittered
away or put out of sight by [the Young majority's] unwarranted distinctions."
Id. at 193 (Harlan, J., dissenting). Justice Harlan disagreed with the
Young majority's statement that In re Ayers, 123 U.S. 443 (1887), was
not controlling. Young, 209 U.S. at 189-90. Ayers involved a Virginia
statute ordering state officials to sue to recover taxes from taxpayers
who had used interest coupons on state bonds to pay their taxes. The Court
in Ayers held that the taxpayers could not bring suit against the officials
to enjoin them from enforcing the statute because such suit would be against
the state. Justice Harlan's dissent in Young argued that the barred suits
in Ayers were identical to the ones in Young because they both involved
suits against officers with no special duty to see to the enforcement
of the statutes in question, and therefore such suits were effectively
against the state. Id. at 203. Furthermore, Justice Harlan asserted that
Fitts, which applied the principles of Ayers, was "[m]ore directly
on point" in Young. Id. at 190. In addition, he noted that Smyth,
which was "much relied" on by the majority, was distinguishable
from Young's facts because in Smyth Nebraska waived immunity from suit
by virtue of a cause of action expressly granted to the railroads by the
statute in question. Id. at 193-94. Justice Harlan feared that Fitts was
"frittered away" because the majority's reliance on Smyth to
support jurisdiction was erroneous in light of Fitts' reaffirmation and
application of Ayers. Cf. Richard H. Fallon et al., Hart & Wechsler's
The Federal Courts and The Federal System 1065-66 (4th ed. 1996) (stating
that Young undermined Ayers). Significantly, he stated: "The statutes
in question did not impose upon the attorney general of Minnesota any
special duty to see to their enforcement. In bringing the mandamus suit
he acted under the general authority inhering in him as the chief law
officer of his state." Id. at 197 (emphasis added).
|||The plurality erroneously interprets Smyth, Fitts, and Young as a consistent
doctrine-a "triad"-emphasizing "strict" requirements
that the officers sued have "some connection with the enforcement
of the act" in question or be "specially charged with the duty
to enforce the statute." However, there is no "triad,"
and the Young fiction is not recognized by any court as the "Smyth-and-Young-as-minimized-by-Fitts"
exception to the Eleventh Amendment bar. There is no authority supporting
Smyth, Young, and Fitts as a consistent line of decisions, and that contention
is belied by Justice Harlan's inability to distinguish the statute in
Fitts from the statute in Young. Young, 209 U.S. at 193 (Harlan, J.) ("I
am unable to distinguish [Fitts], in principle, from the one now before
us."). Further, the statutes in Young and Smyth were not in "sharp
contrast" with the statute in Fitts because, according to Justice
Harlan, there was no difference between the statutes in Young and Fitts,
whereas the statute in Smyth expressly granted a cause of action to the
railroads against the state. Id. at 193-94. More importantly, Young limits
Fitts by finding the necessary "connection" between the officer
and the act by "virtue of his office" whether it arises out
of the general law or is specially created.
|||The plurality incredibly asserts that Young "has spawned numerous
cases upholding, explaining, and recognizing its fundamental principle"
to suggest that its interpretation is so widely accepted as to be beyond
doubt. While I agree that Young has spawned numerous cases, not all of
them have upheld or consistently applied its fundamental principle. The
plurality's suggestion that Young has been uniformly applied is an embellishment
that defies even Young's illogic. Indeed, the plurality only cites decisions
to support its assertion but conspicuously omits contrary authority as
if none exists. See, e.g., City of Altus, 255 F. Supp. at 835. Moreover,
the decisions the plurality cites are hardly a representative sample of
consistent applications of Young, and most are inapposite to this action
because they do not address actions pursuant to Young challenging abortion
|||In addition, the plurality's statement that the "requirement that
there be some actual or threatened enforcement action before Young applies
has been repeatedly applied by the federal courts" is inaccurate.
Numerous Supreme Court cases have relaxed the "threatened enforcement"
requirement of Young in the abortion context. E.g., Casey, 505 U.S. at
845 (reviewing pre-enforcement challenge to Pennsylvania's abortion law);
Doe, 410 U.S. at 745 (permitting pre-enforcement challenge to Georgia
abortion law even before the defendants threatened prosecution); Roe,
410 U.S. at 712-13 (permitting pre-enforcement challenge to Texas abortion
law despite the fact that the plaintiff was not pregnant). Other decisions
directly contradict the plurality's statement. See, e.g., Papasan v. Allain,
487 U.S. 265, 282 n.14 (1986) (holding that the Mississippi Governor and
Secretary of State were proper defendants because of their "general
supervision" over local officials administration of land set-asides
for educational purposes); Voinovich, 130 F.3d at 210 ("Here, the
prosecutors could charge plaintiff.") (emphasis added); Los Angeles
Bar Ass'n v. Eu, 979 F.2d 697 (9th Cir. 1992) (holding that Young applied
even though there was no enforcement by the defendant officials of the
challenged statute governing judicial appointments by the defendants because
"[The statute at issue] is simply not the type of statute that gives
rise to enforcement proceedings."); Luckey v. Harris, 860 F.2d 1012,
1015 (11th Cir. 1988) ("Personal action by defendants individually
is not a necessary condition of injunctive relief against state officers
in their official capacity."). In light of these decisions, to state
that federal courts have repeatedly required the institution of some actual
or threatened enforcement action before hearing officer suits mischaracterizes
|||The plurality compounds its error in reinterpreting Young by formulating
a "some connection" test that is so amorphous that even the
plurality cannot precisely articulate what it measures. The test is initially
stated as "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."
Supra at __ (emphasis added). Then, this "test" is redrafted
as gauging "(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." Id. at ____
(emphasis added). However, the "test" undergoes a further revision
when the plurality modifies the "demonstrated willingness" prong
to include "the ability to act." Id. at ___.
|||The plurality thus transforms its reinterpretation of Young to create
an erroneous test that undermines Young's principle of permitting pre-enforcement
officer suits to "vindicate federal rights and hold state officials
responsible to 'the supreme authority of the United States.'" Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting
Young, 209 U.S. at 160)). Without explanation, Young's requirement that
there be "some connection with the enforcement of the act" has
been modified to something beyond "general authority and responsibility,"
and then distilled to "statutory or constitutional powers."
However, this reformulation cannot be reconciled with Young's express
language that the connection or duty of an officer may arise, "by
virtue of his office," out of the "general law, or is specially
created by the act itself." Young, 209 U.S. at 157 (emphasis added);
Papasan, 478 U.S. at 283 n.14; Luckey, 860 F.2d at 1016.
|||Nonetheless, even under this "test" Appellants have "some
connection to the enforcement" of Act 825. A distinct nexus exists
because Act 825 strips Appellees and other abortion providers of statutory
limitations on medical malpractice liability they currently enjoy. § 9:2800.12(C)(2).
The Governor and Attorney General supervise and control the implementation
of the statutory limitations of liability, codified in Title 40 of the
State's Revised Statutes. By exempting all claims brought pursuant to
Act 825 from Title 40 coverage, Act 825 requires the Governor and Attorney
General, and the entities and administrators they supervise and control,
to enforce this exemption by disallowing any abortion provider's claim
to liability coverage whenever they are sued under Act 825.
|||Under Louisiana's medical malpractice regime, total liability is capped
at $500,000. 22C La. Rev. Stat. Ann. § 40:1299.42.B. However, any private
doctor is liable only up to $100,000-any additional liability up to $500,000
is to be paid from a Patient's Compensation Fund ("PCF"). §
40:1299.42.B; see also Kelty v. Brumfield, 633 So.2d 1210 (La. 1994) (per
curiam). The PCF is administered by the Patient's Compensation Fund Oversight
Board ("PCFOB"), a board in the office of the Governor with
members appointed by the Governor. § 40:1299.44.D. The PCFOB may contest
the quantum of damages, but not its liability. See Kelty, 633 So.2d at
|||The Office of Risk Management ("ORM") is an office within
the Governor's Division of Administration and headed by the commissioner
of administration, and is thus subject to the Governor's direct control
and supervision. §§ 39:3-5; 39:1528. The ORM appoints legal counsel for
the PCF and establishes minimum qualification standards for such counsel.
§ 40:1299.41.J. Any liability incurred by the state is paid from the Self-Insurance
Fund. § 39:1533. It is the duty of the Attorney General to appoint legal
counsel to the Self-Insurance Fund, and the Attorney General must approve
all settlements made by the Self-Insurance Fund over $25,000. §§ 39:1533.B;
|||Under Title 40's medical malpractice regime, all malpractice claims
against state and private health care providers must be reviewed by a
medical review panel before the claimant can file suit in court. §§ 40:1299.39.1;
40:1299.47. The state medical review panels are administered by the commissioner
of administration, who is appointed and supervised by the Governor and
serves at the Governor's pleasure. §§ 40:1299.1.A(1); 39:1. The private
medical review panels are administered by the PCFOB. §§ 40:1299.44D; 40:1299:47.
The medical review panels are required to render expert opinions on each
claim that are admissible in evidence in any subsequent court action,
and members of the panel may be called as expert witnesses in the case.
§§ 40:1299.39.1G, H; 40:1299.47.G, H; see also Everett v. Goldman, 359
So.2d 1256 (La. 1978).
|||Under this regulatory scheme, the Governor and the Attorney General
have the requisite connection to the enforcement of Act 825 to satisfy
Young. The Governor appoints and supervises the board that reviews medical
malpractice claims and the Attorney General supervises and oversees the
appointment of counsel and the payments of settlements from the State's
funds, as well as representing the state's interests against constitutional
challenges. The Governor and the Attorney General, through their appointment
and oversight responsibilities, must determine which malpractice claims
are exempt from the medical malpractice regulatory scheme under Act 825.
See Papasan, 478 U.S. at 283 n.14; cf. Eu, 979 F.2d at 704 (determining
that Young's "connection" requirement was satisfied by the governor's
duty to appoint and fill positions and the secretary of state's duty to
certify elections, and stating that the statute in question "is not
the type that gives rise to enforcement" (emphasis added)).
|||For example, has a physician who provides a woman with an intrauterine
device ("IUD") performed an abortion?*fn75
Medical review panels will be required to review all medical malpractice
actions arising out of the use of IUDs and determine whether the prescribing
physician performed an "abortion" as defined by Act 825. The
panels will likewise be called on to exercise discretion in applying the
State's malpractice regime in cases arising out of treatment of chorioamnionitis.
When a woman develops this intrauterine infection early in a pregnancy,
she and the fetus may die if left untreated; however, the only available
treatment will terminate the pregnancy. See Whitridge at 751. Will the
physician who treats the woman, saving her life but terminating the pregnancy,
be held by the review panel to have performed an abortion and thus be
disqualified for Title 40 protection? Such decisions employ, by statutory
requirement, Appellants' regulatory powers. In yet another example, abortion
procedures may be coupled with the administration of anaesthesia or tubal
ligation, which remain eligible for the medical malpractice regime. Medical
review panels will be called on to "enforce" Act 825 by determining
which claims to exclude from the medical malpractice regime. Cf. Eu, 979
F.2d at 704.*fn76 Pharmacologically
induced abortions, caused by such agents as RU-486 or the "morning
after pill" present still other enforcement questions because pharmacists,
as well as physicians, are listed as "health care providers"
for purposes of Title 40. See § 40:1299.41(A)(1). A physician, by prescribing
RU-486, clearly performs an abortion under Act 825, since the drug accomplishes
"the deliberate termination of an intrauterine human pregnancy after
fertilization of a female ovum." Medical review panels will therefore
have to regulate the circumstances under which Act 825 denies limits on
malpractice liability for claims relating to prescriptions for and use
of for such drugs. Consider also the emergency room surgeon presented
with a pregnant woman who, having sustained blunt trauma in an automobile
crash or a domestic violence incident, has a ruptured uterus. Since the
mandated treatment for such condition includes the deliberate termination
of the pregnancy, will the Governor's medical review panel deny the physician
performing the procedure the protections of Title 40 and subject the doctor
to unlimited liability for the death of the fetus? While far from exhaustive,
these examples leave no doubt that the Governor and the Attorney General,
through their supervision and control, have a routine, concrete role in
enforcing Act 825.
|||We recently allowed health maintenance organizations ("HMOs")
to bring a pre-emptive action against the Texas attorney general and commissioner
of insurance challenging a Texas act that, inter alia, creates a private
cause of action for patients against their HMOs. Corporate Health Ins.,
Inc., 215 F.3d 526, 532 & n.6 (5th Cir. 2000) (Higginbotham, J.).
In Corporate Health we held that the plaintiffs had standing and the defendants
were properly named because of the defendants' powers of appointment,
supervision, and regulatory oversight over the Texas health insurance
industry. We especially noted that the commissioner of insurance was a
proper defendant given his "oversight authority" as was the
attorney general because of his "regulatory reach" and general
discretionary power to bring actions under the Texas Deceptive Trade Practices
Act. Id. Such authority and power constituted sufficient connection to
the enforcement of the challenged law, including the civil cause of action,
to allow the suit to proceed pursuant to Young.
|||In light of Corporate Health, it is clear that "some connection"
exists in this action by virtue of the Governor's and Attorney General's
participation in the State's extensive medical malpractice regime. No
principled distinction can be made between Corporate Health and this action
to conclude that case or controversy exists in the former but not the
latter. In this action, Appellants' connection to the enforcement of Act
825 is equivalent to, if not greater than, the connection between the
defendants and the challenged law in Corporate Health. The plurality's
statement that we are powerless to hear Appellees' challenge in this case
is contrary to Supreme Court law and conflicts with our reasoning and
holding in Corporate Health.
|||It is also apparent that Appellees have established a case or controversy
against Appellants. Appellees' standing is clearly supported by the relevant
decisions noted above. E.g., Casey, 505 U.S. at 845; Danforth, 428 U.S.
at 83-84; Colautti, 439 U.S. at 384 n.3; Voinovich, 130 F.3d at 192 n.3;
see also Corporate Health, 215 F.3d at 532; Causeway Med. Suite v. Ieyoub,
109 F.3d 1096, 1102 (5th Cir. 1997). Notably, we have upheld Appellees'
standing to challenge a civil liability provision contained in the State's
partial-birth abortion statute against these same Appellants. Causeway
Med. Suite, 221 F.3d at 811, aff'g, Causeway Med. Suite, 43 F. Supp. 2d
|||The majority opinion, while conceding that Appellees have uundoubtedly
established an "injury-in-fact," simply concludes that Appellants
had not caused any injury to Appellees. Such conclusion ignores and is
in conflict with the authority upholding standing for abortion providers
and clinics asserting their own rights for potential injury to economic
opportunity or liberty as well as the liberty interests of their patients.
E.g., Singleton v. Wulff, 428 U.S. 106, 118 (1976); Causeway Med. Suite,
221 F.3d at 811; Causeway Med. Suite, 109 F.3d at 1102; Greco v. Orange
Mem. Hosp. Corp., 513 F.2d 873, 875 (5th Cir. 1975) (noting abortion provider's
individual economic and liberty interest in practicing medicine free from
arbitrary restraints). More importantly, the majority fails to effectively
analyze why the plaintiffs in Casey, Causeway Medical Suite, Voinovich,
Miller, and Corporate Health were able to successfully allege that a civil
liability provision created an injury-in-fact traceable to the defendants
when the named defendants had no ability to "enforce" the provision.
|||The majority summarily dismisses the existence of causation and redressability
notwithstanding our past declaration that "the Supreme Court has
visibly relaxed its traditional standing principles in deciding abortion
cases." Margaret S., 794 F.2d at 997 (Higginbotham, J.) (citing Roe,
410 U.S. at 123-29, and Doe, 410 U.S. at 187-89). As discussed above,
the threatened injury is exposure to unlimited damages for strict liability
for performing abortions, which Appellants directly regulate. Moreover,
we have held that "a plaintiff must establish that the injury is
fairly traceable to the proposed government action or inaction."
Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998) (Benavides,
J.) (emphasis added); Luckey, 860 F.2d at 1016. Appellees' injury, risk
of unlimited strict liability, is fairly traceable to Appellants' role
in Louisiana's medical malpractice regime because Appellants will enforce
Act 825 by excluding Appellees from Title 40 coverage for claims pursuant
to Act 825-i.e., Appellants will enforce Act 825 by not acting under Title
40. This enforcement by "inaction" means that the PCFOB will
not defend against the quantum of damages, the Governor (through his commissioner
of administration) will not oversee the determination of liability, the
Governor will not pay for the proceedings if a ruling is in favor of the
abortion doctor, and the Attorney General will not have to appoint counsel
or authorize any settlement in excess of $25,000.
|||Despite this rather simple chain of causation, the majority begs the
question by concluding that because Act 825 is a private tort statute,
Appellants have no coercive power sufficient to make the necessary causal
connection.*fn77 However, Appellants
wield coercive power because their duty to execute and uphold the constitutionality
of Act 825 constitutes the power to effectuate the Act's coercive impact.
See Mobil Oil Corp. v. Attorney General, 940 F.2d 73, 76-77 (4th Cir.
1991) (noting that a case or controversy exists in a constitutional challenge
to a private enforcement statute because the state official has sufficient
adverse interests by having the power to intervene to defend the statute);*fn78
cf. Papasan, 478 U.S. at 283 n.14. Moreover, Appellees have asserted that
Appellants' failure to limit potential liability for claims based on abortion-related
injuries by "acting" under Act 825 will cause the injury-in-fact.
See Compl. for Decl. Relief ¶ V at 3, reprinted in R. at 196. The majority's
flawed reasoning creates a double standard by which Appellants, who perform
an unpopular but constitutionally protected procedure, are effectively
barred from bringing any pre-enforcement challenge in federal court, whereas
similarly situated HMOs are free to demand a federal forum.*fn79
|||Lastly, the majority erroneously concludes that Appellees fail to satisfy
the "redressability" requirement of standing because the injunction
granted by the district court is "utterly meaningless." Ironically,
this is the same argument Appellants offered and we rejected in Causeway
Medical Suite, 109 F.3d at 1102. There, these Appellants asserted that
Appellees lacked standing to challenge judicial bypass procedures because
they did not have "the power to enforce private-action court procedures."
Id. Appellants argued that the injunction in this case is 'hypothetical
and meaningless.'" Id. We rejected this argument under Casey. Id.
More importantly, the majority reaches its conclusion without any authority,
ignoring our "duty to decide the appropriateness and the merits of
the declaratory request irrespective of [our] conclusion as to the propriety
of the issuance of the injunction" in actions brought under the Declaratory
Judgment Act, 28 U.S.C. § 2201 (1994). Steffel v. Thompson, 415 U.S. 452,
468 (1974) (emphasis added); cf. id. at 478 (Rehnquist, J.) ("[The
primary purpose of the Declaratory Judgment Act is] to enable persons
to obtain a definition of their rights before an actual injury occurred.").
The Supreme Court has held that "it is not necessary to decide whether
[a plaintiff's] cause of action against the [defendant] based directly
on the Constitution is in fact a cause of action on which [the plaintiff]
could actually recover. . . . Instead the test is whether the cause of
action alleged is so patently without merit as to justify the court's
dismissal for want of jurisdiction." Duke Power v. Carolina Env'l
Study Group, 438 U.S. 59 (1978) (internal quotation marks omitted); see
also Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) ("[A] plaintiff
satisfies the redressability requirement when he shows that a favorable
decision will relieve a discrete injury to himself. He need not show that
a favorable decision will relieve his every injury."). The majority's
fixation with the "meaning" of the injunction is not based on
a rule of law, but rather on an arbitrary principle ignoring Louisiana
law and designed to restrict access to federal courts.
|||A suit for declaratory and injunctive relief is the classic procedural
mechanism for challenges to the constitutionality of state abortion statutes.
E.g., Casey, 505 U.S. at 845; Roe, 410 U.S. at 120; Doe, 410 U.S. at 185.
Without regard to the meaning of an injunction, we have upheld the issuance
of such injunction to enjoin these Appellants from enforcing a civil liability
statute for damages for violation of Louisiana's ban on partial-birth
abortions. Causeway Med. Suite, 221 F.3d at 811, aff'g, Causeway Med.
Suite, 43 F. Supp. 2d at 619. Moreover, Appellees' injury can be specifically
redressed by an injunction against the Governor to order 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. See § 39:4.C ("The division of administration
shall exercise such other duties and functions germane to its primary
functions as may be prescribed by law or as directed by the governor by
executive order."). It can further be redressed by an injunction
against the Attorney General requiring him to appoint counsel to defend
civil suits on an equal basis with non-abortion providers in medical malpractice
cases. See § 39:1533.B.
|||Based on the foregoing, I conclude that the Eleventh Amendment does
not bar consideration of this case in federal court and that Appellees
have asserted a "Case or Controversy" against Appellants.
|||*fn1 Fourteen judges participated in this en banc proceeding. Seven
judges join Judge Jolly's opinion in full, both with regard to standing
and the Eleventh Amendment analysis (Jolly, Davis, Jones, Smith, Barksdale,
Emilio Garza, and DeMoss). Three judges join Judge Jolly's opinion with
regard to standing only (King, Higginbotham, and, in part, Benavides).
Four judges join Judge Parker's dissent (Parker, Wiener, Stewart, and
Dennis). Judge King joins Judge Higginbotham's opinion. However, to fully
understand the scope of the partial concurrences to Judge Jolly's opinion,
the reader is referred to the opinions of Judges Higginbotham and Benavides.
|||*fn2 Because we find no significant
distinction between the positions of Dr. Okpalobi and the intervening
clinics and physicians on appeal, we use "plaintiffs" in this
opinion to include all intervenors as well as Dr. Okpalobi.
|||*fn3 Act 825 states: Section 2800.12
Liability for termination of a pregnancy A. Any person who performs an
abortion is liable to the mother of the unborn child for any damage occasioned
or precipitated by the abortion, which action survives for a period of
three years from the date of the discovery of the damage with a preemptive
period of ten years from the date of the abortion. B. For purposes of
this Section: (1) "Abortion" means the deliberate termination
of an intrauterine human pregnancy after fertilization of a female ovum,
by any person, including the pregnant woman herself, with an intention
other than to produce a live birth or to remove a dead unborn child. (2)
"Damage" includes all special and general damages which are
recoverable in an intentional tort, negligence, survival, or wrongful
death action for injuries suffered or damages occasioned by the unborn
child or mother. (3) "Unborn child" means the unborn offspring
of human beings from the moment of conception through pregnancy and until
termination of the pregnancy. C.(1) The signing of a consent form by the
mother prior to the abortion does not negate this cause of action, but
rather reduces the recovery of damages to the extent that the content
of the consent form informed the mother of the risk of the type of injuries
or loss for which she is seeking to recover. (2) The 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.
|||*fn4 Although the record shows that
the Attorney General of Louisiana was named as a party and was served
with citation, and although he is named as a party in all of defendants'
pleadings, in the injunction orders, and on the notice of appeal, he does
not appear as a party on the docket sheet in this court. He nevertheless
has invoked the appellate jurisdiction of this court and is a party to
|||*fn5 Plaintiffs provide over eighty
percent of the abortion services rendered in Louisiana.
|||*fn6 In the district court neither
party, nor the district court, raised the question of an Article III case
or controversy or the Eleventh Amendment.
|||*fn7 The Eleventh Amendment states:
"The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or subjects
of any Foreign State." U.S. Const. amend. XI. The Supreme Court has
interpreted the amendment to also constitute a bar on a suit brought against
a State by its own citizens in federal court. See Hans v. Louisiana, 134
U.S. 7, 10 S.Ct. 504 (1890).
|||*fn8 The Supreme Court decided Chisholm
on February 14, 1794. Three weeks later, Congress had approved the Eleventh
Amendment, and within one year the requisite number of states had ratified
|||*fn9 "The States thus retain
'a residuary and inviolable sovereignty.' They are not relegated to the
role of mere provinces or political corporations, but retain the dignity
. . . of sovereignty." Id. at 715 (quoting The Federalist No. 39,
p. 245 (C. Rossiter ed. 1961) (J. Madison)).
|||*fn10 The panel opinion suggests
that Smyth stands for the proposition that no special connection is required
between a defendant state official and the challenged statute. See Okpalobi,
190 F.3d at 344. However, the excerpt from Smyth quoted above clearly
indicates that the defendant officers had a duty to enforce the statute
in question and seems to undermine the panel's conclusion that Smyth did
not involve a 'special relationship' between the defendants and the challenged
|||*fn11 The sufficiency of the enforcement
power vested in the defendant state officials was never addressed in Smyth.
It is clear, however, that the defendants in Smyth possessed enforcement
powers not found in the defendants in the case before us. See Smyth, 169
U.S. at 476.
|||*fn12 "It was provided in the
act that 'any railroad company, or any officer, agent, or representative
thereof, who shall violate any provision of this act, shall be guilty
of a felony, and, upon conviction thereof, shall be punished by a fine
not exceeding five thousand dollars, or by imprisonment . . .'" Id.
|||*fn13 "For this reason the
complainants allege that the above-mentioned orders and acts . . . denied
to the . . . railway company and its stockholders . . . the equal protection
of the laws, and deprived it and them of their property without due process
of law . . ." Id. at 131.
|||*fn14 The Court also observed: The
question remains whether the attorney general had, by the law of the state,
so far as concerns these rate acts, any duty with regard to the enforcement
of the same. By his official conduct it seems that he regarded it as a
duty connected with his office to compel the company to obey the commodity
act, for he commenced proceedings to enforce such obedience immediately
after the injunction issued, at the risk of being found guilty of contempt
by so doing. Id. at 160.
|||*fn15 In full, the Court said: In
making an officer of the state a party defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional, it is plain that
such officer must have some connection with the enforcement of the act,
or else it is merely making him a party as a representative of the state,
and thereby attempting to make the state a party. . . . The fact that
the state officer, by virtue of his office, has some connection with the
enforcement of the act, is the important and material fact. . ."
Id. at 157 (emphasis added).
|||*fn16 We note the dissent's reliance
on Justice Harlan's Young dissent in its attempt to show that "it
is flatly wrong to assert that Young and Fitts are consistent." Although
dissents may be scholarly and persuasive to some, they are not binding
law to any. The dissent's reliance upon Justice Harlan's words suggests
that they, like Justice Harlan, are simply disenchanted with the fundamental
principle articulated in Young.
|||*fn17 See also Dombrowski v. Pfister,
380 U.S. 479, 483 (1965) ("In Ex parte Young . . . , the fountainhead
of federal injunctions against state prosecutions, the Court characterized
the power and its proper exercise in broad terms: it would be justified
where state officers '. . . 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 . . .'").
|||*fn18 Our review of the Supreme
Court's abortion cases shows that, as the dissent notes, the Court has
apparently relaxed certain standing requirements in the abortion context
and authorized pre-enforcement challenges to criminal abortion statutes.
However, none of these cases suggest, as the dissent intimates, that the
requirements of Ex parte Young have in any way been relaxed or vitiated
in the abortion context. Indeed, none of the Supreme Court abortion cases
expressly address the requirements of Ex Parte Young in the abortion context.
This is not surprising in that in all of the abortion cases, unlike the
case before us, the defendants had clear capabilities of enforcing the
|||*fn19 The panel "glean[ed]"
this test from Gras v. Stevens, Federal Nat'l Mortgage Ass'n v. Lefkowitz,
383 F.Supp. 1294 (S.D.N.Y. 1974), and Allied Artists Pictures Corp. v.
Rhodes, 473 F.Supp. 560 (S.D. Ohio 1979), aff'd 679 F.2d 656 (6th Cir.
|||*fn20 The panel relied on the governor's
constitutional duty to "faithfully support the constitution and laws
of the state," La. Const. art. IV, § 5(A), and the attorney general's
power and right "to institute, prosecute, or intervene in any civil
action or proceeding[.]" Id., art. IV, § 8. See Okpalobi, 190 F.3d
|||*fn21 The panel noted the Young
Court's statement that "[t]he doctrine of Smyth v. Ames was neither
overruled nor doubted in the Fitts case." 209 U.S. at 156.
|||*fn22 The Fitts Court specifically
recognized this critical difference in distinguishing the facts of Smyth
and finding that the defendants in that case were "specially charged
with the execution" of the challenged statute. Fitts, 172 U.S. at
529. It would seem that this distinction between Smyth and Fitts, noted
by the Supreme Court, calls into question the panel's understanding of
Smyth as support for its interpretation of Young as imposing a lesser
legal standard than Fitts.
|||*fn23 The statute challenged in
Smyth authorized not only private suits for overcharges, but also enumerated
a system of substantial and escalating fines to be paid to the state.
See 169 U.S. at 517. Thus, the statute involved liability to the state
in addition to private contractual liability. A system of fines implies
an enforcement power in the state.
|||*fn24 The immediately following
sentence, in the same paragraph, reads: The being specially charged with
the duty to enforce the statute is sufficiently apparent when such duty
exists under the general authority of some law, even though such authority
is not to be found in the particular act. It might exist by some reason
of the general duties of the officer to enforce it as a law of the state.
This use in Young of the "specially charged" language from Fitts
reinforces the holding in Fitts and clearly suggests that the court did
not intend the "some connection" to be without authority to
enforce the statute.
|||*fn25 We note especially the Young
Court's adoption of the "special charge" language from Fitts:
"The being specially charged with the duty to enforce the statute
is sufficiently apparent when such duty exists under the general authority
of some law. . ." Young, 209 U.S. at 158.
|||*fn26 This conclusion is essentially
the one reached by Judge Friendly in Gras: The argument would continue
that although Fitts v. McGhee held that the bar of the Eleventh Amendment
could not be avoided by suing state officers in the absence of "any
special relation" on their part "to the particular statute alleged
to be unconstitutional," this was altered by the statement in Ex
parte Young [regarding "some connection"]. In our view this
would extend Ex parte Young beyond anything which the Supreme Court intended
or has subsequently held. . . . [W]e know of no case in which the general
duty of a governor to enforce state laws has been held sufficient to make
him a proper party defendant in a civil rights action attacking the constitutionality
of a state statute concerning . . . private civil actions. 415 F.Supp.
|||*fn27 Allied Artists states: Thus
the problem now before the Court becomes that of properly placing this
case on the continuum. Defendants would argue that since the Act purports
to regulate contractual rights between private parties, namely motion
picture distributors and exhibitors, there is no realistic potential that
the defendant governor would act to enforce the statutory rights which
could be vindicated by private action. Plaintiffs on the other hand would
claim that the alleged substantial and immediate impact upon them of the
Act is tantamount to direct state regulation which could reasonably require
the governor's attention under his general duty to see to the faithful
execution of the laws. . . . I believe it can be reasonably maintained
that the Act amounts to state regulation of movie producers and distributors
doing business in Ohio. Presumably, then, this exercise of the state's
regulatory power is designed to implement and serve the public interest
of Ohio. The Court is aware that there is no criminal sanction attached
to the Act, and also that plaintiffs could possibly await a dispute with
an exhibitor and sue, raising there the question of the Act's constitutionality.
However, that begs the question in the case at bar. The pertinent question
is: does the governor of Ohio, as the chief executive of the state, have
an interest in the enforcement of the Act? Or, on the other hand, is this
simply an Act near the Gras end of the continuum where the public interest
is not crucial, the dispute is such that the governor's interest is absent,
and the matter can be adequately decided in an action between concerned
private parties? The question is difficult; the real thrust of the Act
is somewhat obscure on its face. However, in ruling on this motion to
dismiss, the Court must view the complaint most favorably for plaintiffs.
Thus, in the exercise of great caution . . . I hold that plaintiffs have
alleged facts sufficient to invoke the Young fiction and to avoid the
Eleventh Amendment bar. 473 F.Supp. at 569. Of course, presumably every
statute is designed to serve the public interest in some way or another.
More importantly, the placement of this statute on the "public"
side of the continuum seems not to have been much of a weighed decision
at all, given the obvious deference to the plaintiff's argument in a Rule
12(b)(6) motion. Allied Artists is, however, the sum total of the panel's
support for its adoption of a "continuum" prong and its placement
of Act 825 on the "public" side of the continuum.
|||*fn28 None of the plaintiff-appellees
appear willing to rely on the dissent's theory. Indeed, the appellees
expressly observe in their briefs that the medical malpractice scheme
does not apply to any cause of action under Act 825.
|||*fn29 The dissent asserts 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 before the claimant can file suit in court." (emphasis
|||*fn30 The dissent incorrectly observes
that Act 825 "remov[es] abortion doctors from the umbrella of medical
malpractice protections." Act 825 does not exempt abortion doctors
from the provisions of Title 40. Rather, all claims brought pursuant to
Act 825 are exempt from Title 40. It is upon this initial flawed foundation
that the entirety of the dissent's argument is constructed.
|||*fn31 See, e.g., Causeway Med. Suite
v. Foster, 221 F.3d 811 (5th Cir. 2000), aff'g, Causeway Med. Suite v.
Foster, 43 F.Supp. 2d 604, 609 (E.D. La. 1999); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 909, 112 S.Ct. 2791
(1992); Colautti v. Franklin, 439 U.S. 379, 381, 99 S.Ct. 675 (1979);
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 83-84,
96 S.Ct. 2831 (1976); Karlin v. Foust, 188 F.3d 446, 456 (7th Cir. 1999);
Women's Medical Prof'l Corp. v. Voinovich, 130 F.3d 187, 191 (6th Cir.
1997); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452,
1454 (8th Cir. 1995).
|||*fn32 We also briefly respond to
Judge Benavides' concurring and dissenting opinion. We understand that
opinion to suggest that we should "pragmatically" apply Ex Parte
Young in a declaratory judgment action, without regard to the fact that
no case has ever rejected the Young fiction as the only means of avoiding
the Eleventh Amendment; that we should assume that the Eleventh Amendment
makes an exception for the Declaratory Judgment Act for any case that
seeks to enforce a federal right denied by the state, when this position
has never been held by any court; that we should find no Article III controversy
in this case as to the injunction, and then turn and find a controversy
on the same set of facts, including the same parties, alleging the same
claim and seeking the same resolution via a declaratory judgment; and
that we should assume that the Declaratory Judgment Act provides an independent
cause of action, notwithstanding that the law makes clear that--although
the Declaratory Judgment Act provides a remedy different from an injunction--it
does not provide an additional cause of action with respect to the underlying
claim. See Earnest v. Lowentritt, 690 F.2d 1198, 1203 (5th Cir. 1982).
Neither case law or the Constitution allows for this creative analysis.
The opinion makes the novel and cryptic contention that "the Supreme
Court's modern standing doctrine has subsumed the connection inquiry [of
Young]." The revelation that the connection inquiry of Young is no
longer applicable law would come as a surprise to the numerous federal
courts that continue to apply this connection inquiry as the binding law
of the land. See, e.g., Lytle v. Griffith, 2001 WL 133189 (4th Cir. Feb.
16, 2001); Confederated Tribes & Bands of the Yakama Indian Nation
v. Locke, 176 F.3d 467 (9th Cir. 1999); Snoeck v. Brussa, 153 F.3d 984
(9th Cir. 1998); Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988); Finberg
v. Sullivan, 634 F.2d 50 (3d Cir. 1980); Shell Oil Co. v. Noel, 608 F.2d
208 (1st Cir. 1979). That the doctrine of standing has "subsumed"
the connection inquiry under Young would likely surprise the Supreme Court
itself, which has never questioned the continuing viability of Young and,
indeed, has recently reaffirmed the vitality of the doctrine. Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 262, 117 S.Ct. 2028 (1997).
We note that the Supreme Court has frequently emphasized its unwillingness
to recognize the overruling of its precedent by implication. See Agostini
v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997 (1997) ("We do not acknowledge,
and we do not hold, that other courts should conclude our more recent
cases have, by implication, overruled an earlier precedent. We reaffirm
that if a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving
to this Court the prerogative of overruling its own decisions.")
(citation omitted). This opinion effectively asks us to jettison the traditional
connection inquiry outlined in Young and hold that the state qua state
may be sued in federal court when the plaintiff, in a declaratory judgment
action, seeks to assert federal constitutional rights against the state
because the Fourteenth Amendment trumps the Eleventh Amendment. To borrow
the concurring and dissenting opinion's words: "That [is] beyond
the power of this intermediate court."
|||*fn33 We are at a loss to grasp
what drives Judge Higginbotham's concurring opinion, in which he states
that our effort to resolve the crucial Eleventh Amendment question in
this case "should not have been undertaken." Despite its opposition,
the concurring opinion in no way hints at where our treatment of Ex parte
Young runs astray of the established law and does not deny that the issue
has been central to both the panel opinion and these en banc proceedings.
Indeed, the opinion seems to ignore the prominence, not to mention the
importance, of that issue in this case and the purpose of the en banc
court. The panel opinion based its holding on Young. This court voted
for en banc to consider the Eleventh Amendment issues that the parties
and the panel had raised. The State has vigorously asserted its Eleventh
Amendment immunity in both its petition for rehearing and in its en banc
briefs. The plaintiff-appellees addressed the Young issue before this
en banc court as well. Therefore, once this case reached the full court,
the State was forcefully claiming its Eleventh Amendment immunity, and
the plaintiff-appellees were vigorously arguing the Young exception. The
purpose of the en banc court is 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). Under the circumstances of this case, it would
be difficult, if not irresponsible, to remain silent on the panel's and
the dissent's misreading of the Young exception.
|||*fn34 In Calderon, the Ninth Circuit
had rejected the defendant state officers' Eleventh Amendment defense
and affirmed a declaratory judgment regarding a portion of the Antiterrorism
and Effective Death Penalty Act of 1996. The Supreme Court, which had
granted certiorari on the court's rejection of the defendants' Eleventh
Amendment defense, passed the opportunity to address the question of Eleventh
Amendment immunity, and decided the case based on Article III standing.
Whether the Supreme Court would come to the same conclusion were it faced
with the case before us, where the issue on appeal is the propriety of
an injunction rather than a judgment under the Declaratory Judgment Act,
is surely open to question. We note that the authority cited by the Calderon
court for first addressing standing does not support the proposition that
courts must always address standing before considering the Eleventh Amendment.
The Court first relied on Patsy v. Board of Regents of Florida, 457 U.S.
496, 102 S.Ct. 2557 (1982). In Patsy, the Court decided not to address
the Eleventh Amendment issue in part because the State had expressly requested
that the Court address the substance of the claim. See Id. at 515. It
is relevant to our case to note, however, that one of the reasons the
Court decided to look past the Eleventh Amendment and to address the merits
of the exhaustion claim was that the exhaustion issue was "decided
below and vigorously pressed in this Court." Id. Here, too, have
the State of Louisiana and the plaintiff-appellees "vigorously pressed"
the Eleventh Amendment issue before this en banc court. Second, the Calderon
court relied on Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117
S.Ct. 2028 (1997), in deciding to address Article III jurisdiction before
the Eleventh Amendment. Although Coeur d'Alene holds that "a State
can waive its Eleventh Amendment protection", that case does not
suggest that the Eleventh Amendment is anything less than an actual restriction
on the Article III jurisdiction of the federal courts. See Id. at 270
(noting that "Eleventh Amendment immunity represents a real limitation
on a federal court's federal-question jurisdiction."). Finally, it
must be recognized that, on several other occasions, the Supreme Court
has not addressed the standing issue prior to addressing the Eleventh
Amendment, despite the fact that standing was an issue in these cases.
See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73, 116
S.Ct. 1114 (1996); Edelman v. Jordan, 415 U.S. 651, 658-59, 94 S.Ct. 1347
(1974). Indeed, the Supreme Court has stated in unequivocal words that
"the Eleventh Amendment [stands] for the constitutional principle
that state sovereign immunity limit[s] the federal courts' jurisdiction
under Article III." Seminole Tribe, 517 U.S. at 64; See also Coeur
d'Alene, 521 U.S. at 270.
|||*fn35 The district court enjoined
the statute. An injunction enjoins a defendant, not a statute. The dissent
does not suggest to us the wording of the proposed injunction against
these defendants that it would enter to bar either private plaintiffs
from suing under the statute or courts from hearing such suits.
|||*fn36 The dissent cites Causeway
Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 1997), for the proposition
that these plaintiffs have a case or controversy against the Governor
and Attorney General in this case. In Causeway, however, two additional
named defendants (the Secretary of the Department of Health and Hospitals
and the Secretary of the Department of Social Services) appear to have
possessed some enforcement connection with the challenged statute. See
id. at 1100-01. The opinion, however, does not analyze in any detail the
case or controversy issue, and the precise role that each defendant played
in enforcing the statute in question is not clear. See id. at 1102. To
the extent, however, that Causeway might stand for the proposition that
the defendants need have no causal connection to the plaintiff's injury
and powers to redress the injury in order to create an Article III case
or controversy, that case is overruled.
|||*fn37 The cases cited by the dissent
that purport to authorize standing under these facts are hardly persuasive
in deciding the jurisdiction of the federal courts in the case before
us. In each of those cases, a case or controversy existed between the
plaintiffs and defendants because of the presence of criminal liability
provisions, fully enforceable by the state officials who were sued. There
is no such basis here that would provide an Article III home.
|||*fn38 The cases cited by the dissent
to support this relaxation of the injury requirement do not in any way
minimize the necessity of causation and redressability to establish an
Article III case or controversy.
|||*fn39 The dissent cites Mobil Oil
Corp. v. Attorney General, 940 F.2d 73 (4th Cir. 1991), as support for
its claim that causation and redressability can exist even where a challenged
statute provides only a private tort cause of action. The court in Mobil
Oil did indeed find a controversy between the plaintiff and the Attorney
General of Virginia in that case. However, that controversy was founded
upon the Attorney General's explicit statutory authority, as granted via
the challenged act itself, to "investigate and bring an action in
the name of the Commonwealth to enjoin any violation of [the statute]."
Va.Code § 59.1-68.2. This authority--granting the defendants some sort
of enforcement power against the plaintiffs so as to create a case or
controversy under Article III--simply does not exist in the case before
us. The dissent's interpretation of Mobil Oil as saying that this express
statutory authority, non-existent in the case before us, was "irrelevant"
to a finding of controversy between the plaintiff and Attorney General
is plainly wrong.
|||*fn40 The dissent cites Corporate
Health Insurance, Inc. v. Texas Department of Insurance, 215 F.3d 526
(5th Cir. 2000), for the proposition that the medical malpractice scheme
alone gives the Governor and Attorney General sufficient powers of causation
and redressability with regard to Act 825, notwithstanding the fact that
Act 825 provides only a private cause of action. The citation of Corporate
Health for this proposition seems to us seriously mistaken. The dissent
ignores the following language that makes it clear that a case or controversy
in that case was founded upon the authority of the Attorney General to
specifically enforce the statute at issue: Aetna replies that it has standing
because the liability provisions expose it not only to private suits but
also to the regulatory reach of the Attorney General. We agree. This is
not a case in which private suits are the only means of enforcing a challenged
statutory standard. The Attorney General can pursue Aetna through an action
under the Texas Deceptive Trade Practices Act and the Insurance Code.
This regulatory oversight [the right of the Attorney General to sue directly]
is sufficient to create the requisite imminent injury for standing. Id.
at 532 (emphasis added).
|||*fn41 It is important to keep in
mind that anyone exposed to actual liability under this statute has immediate
redress--that is to say, a defendant sued by a private plaintiff under
Act 825 can immediately and forthwith challenge the constitutionality
of the statute. The opinions that follow, although surely recognizing
this fact, seem to fall prey to the fallacy that, failing the success
of this particular challenge to Act 825, an allegedly unconstitutional
statute will remain on the books in Louisiana in perpetuity. That is plainly
not the case. Once any private plaintiff seeks to enforce her rights under
the statute, Act 825, if indeed unconstitutional, will be stricken forever
from the statute books of Louisiana. See La. Code Civ. Proc. Ann. art.
1871 (West 1999); Perschall v. State of Louisiana, 697 So.2d 240, 254
(La. 1997) (holding that the declaratory judgment action by plaintiff,
a registered voter in the state, against the State as the party defendant
was justiciable because the plaintiff's interests and "the State's
duty to uphold the act" were sufficiently adverse). We note that
the Eleventh Amendment is no bar to the United States Supreme Court's
consideration of a case against state officers brought to it by way of
state courts. See South Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160,
166, 119 S.Ct. 1180 (1999).
|||*fn42 I refer to the "majority"
opinion because it has a clear majority in support of its treatment of
standing. The opinion's treatment of Ex parte Young and the Eleventh Amendment
is not supported by a majority of the court.
|||*fn43 209 U.S. 123 (1908).
|||*fn44 See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 568, 570-71 (1992) ("The most obvious problem
in the present case is redressability. . . . The short of the matter is
that redress of the only injury in fact respondents complain of requires
action . . . by the individual funding agencies; and any relief . . .
against the Secretary was not likely to produce that action.").
|||*fn45 The Supreme Court recently
reaffirmed that a federal court should usually address subject matter
jurisdiction before personal jurisdiction in removal cases, unless personal
jurisdiction is easily resolved and determining subject-matter jurisdiction
is difficult. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88
(1999). The majority's approach is in tension with the principles of restraint
underlying Ruhrgas. It repairs to the fundamentals of Ex parte Young instead
of relying on a straightforward application of subject matter jurisdiction.
As I explain, the Supreme Court in Calderon v. Ashmus, 523 U.S. 740 (1998),
has addressed the sequence for standing and Eleventh Amendment issues.
|||*fn46 Lujan, 504 U.S. at 561.
|||*fn47 I recognize that some courts
have addressed the application of Ex Parte Young without first considering
standing. These cases, however, tend to involve an unusual procedural
posture in which the court finds it inappropriate to review standing.
See, e.g., Summit Medical Assoc. v. Pryor, 180 F.3d 1326, 1334-36 (11th
Cir. 1999) (finding review of standing during interlocutory appeal of
denial of Eleventh Amendment immunity to be unavailable under collateral
order doctrine or pendent appellate jurisdiction doctrine).
|||*fn48 523 U.S. 740 (1998).
|||*fn49 Id. at 745 (emphasis added).
|||*fn50 In Calderon, the Supreme Court
overruled the Ninth Circuit, which had treated the Eleventh Amendment
issue as a threshold inquiry. The Ninth Circuit addressed the Article
III standing question only after it had decided the Eleventh Amendment
issue. See Ashmus v. Calderon, 123 F.3d 1199, 1204-07 (9th Cir. 1997).
|||*fn51 Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 n.10, quoting Kentucky v. Graham, 473 U.S.
at 167 n.14; see also Ex parte Young, 209 U.S. 123, 159-160 (1908).
|||*fn52 See 28 U.S.C. § 2201(a).
|||*fn53 Societe de Conditionnement
en Aluminum v. Hunter Eng'g Co., 655 F.2d 938, 943 (9th Cir. 1981).
|||*fn54 See Lawson v. Callahan, 111
F.3d 403, 405 (5th Cir. 1997) (Wisdom, J.) (noting that the "actual
controversy" required under 28 U.S.C. § 2201(a) "is identical
to the meaning of 'case or controversy' for the purposes of Article III").
|||*fn55 See Idaho v. Coeur d' Alene
Tribe, 521 U.S. 261, 288, 291 (1997) (O'Connor, J., concurring) ("[T]he
principal opinion reasons that federal courts determining whether to exercise
jurisdiction over any suit against a state officer must engage in a case-specific
analysis of a number of concerns . . . . This approach unnecessarily recharacterizes
and narrows much of our Young jurisprudence."); id. at 297 (Souter,
J., dissenting) ("The principal opinion would redefine the [Young]
doctrine, from a rule recognizing federal jurisdiction to enjoin state
officers from violating federal law to a principle of equitable discretion
as much at odds with Young's result as with the foundational doctrine
on which Young rests."). The attempt in the principal opinion to
frame Young in terms of case-by-case analysis, id. at 270-80 (Kennedy,
J.), was joined only by the Chief Justice.
|||*fn56 Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803).
|||*fn57 14 U.S. (1 Wheat.) 304 (1816).
|||*fn58 The Act provides: (a) In a
case of actual controversy within its jurisdiction . . . any court of
the United States, upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought. The
legislative history of the Act explains that declaratory judgments "ha[ve]
been especially useful in avoiding the necessity . . . of having to act
at one's peril . . . or abandon one's rights because of a fear of incurring
damages." S.Rep. No. 1005, 73d Cong., 2d Sess., 2-3, 6 (1934); see
also Hearing on H.R. 5623 before a Subcommittee of the Senate Committee
on the Judiciary, 70th Cong., 1st Sess., 75-76 (1928). ("Assuming
that the plaintiff has a vital interest in the enforcement of the challenged
statute or ordinance, there is no reason why a declaratory judgment should
not be issued, instead of compelling a violation of the statute as a condition
precedent to challenging its constitutionality.")
|||*fn59 Judge Higginbotham insists
that the district court in this case granted only injunctive relief, not
a declaration of Act 825's unconstitutionality. As a consequence, he maintains
that independent consideration of plaintiffs' standing to seek declaratory
relief is inappropriate. In granting a preliminary injunction, the district
court declared that Act 825 "has the purpose and effect of infringing
and chilling the exercise of constitutionally protected rights of abortion
providers and woman [sic] seeking abortions." Okpalobi v. Foster,
981 F.Supp. 977, 986 (E.D. La. 1998). This declaration provided the sole
basis for the district court's conclusion that the plaintiffs had demonstrated
a substantial likelihood of success on the merits of their request for
a permanent injunction against the statute's enforcement. See id. When
the district court later made its preliminary injunction permanent pursuant
to an agreement between the parties, it referenced the declaration contained
in its previous order. I conclude, like the panel majority, that "[b]ecause
of the express reference to the earlier order declaring the Act unconstitutional
and because the only basis for the injunction articulated is the district
court's decision that the Act violated the Constitution, the order before
us on appeal of necessity grants the plaintiffs' request for both declaratory
and injunctive relief." See Okpalobi v. Foster, 190 F.3d 337, 341
(5th Cir. 1999). The Supreme Court reached the same conclusion on similar
facts. See Green v. Mansour, 106 S.Ct. 423, 426, n.1 (1985) (finding declaration
of regulation's unconstitutionality "embodied in" district court's
judgment granting injunctive relief).
|||*fn60 While there is no bright line
test for finding an "actual controversy" the Supreme Court provided
guidance on the inquiry in Aetna Life Ins. Co., the seminal case affirming
the constitutionality of the Declaratory Judgment Act: A justiciable controversy
is thus distinguished from a difference or dispute of a hypothetical or
abstract character, from one that is academic or moot. The controversy
must be definite and concrete, touching the legal relations of parties
having adverse legal interests. It must be a real and substantial controversy
admitting of specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. Where there is such a concrete case admitting
of an immediate and definitive determination of the proceeding upon the
facts alleged, the judicial function may be appropriately exercised .
. . 300 U.S. at 240-41, 57 S.Ct. at 464 (citations omitted).
|||*fn61 This Circuit has stated: "A
controversy, to be justiciable, must be such that it can presently be
litigated and decided and not hypothetical, conjectural, conditional,
or based upon the possibility of a factual situation that may never develop."
Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989) (quoting
Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir.
|||*fn62 Moreover, absent pre-enforcement
action by this Court, the nature of the statutory regime may inhibit any
review of its constitutionality. Doctors fearing heightened liability
will likely forgo performing abortions, thus there will be no strict liability
suits brought in which the constitutionality of the regime could be tested.
This lack of review exacerbates the true injury - the "chilling"
of a woman's constitutional right to choose an abortion.
|||*fn63 As Judge Jolly's Eleventh
Amendment conclusion has not received the votes of a majority of the sitting
en banc court, it is not controlling authority for future Eleventh Amendment
questions in this Circuit. See Marks v. United States, 430 U.S. 188, 193,
97 S.Ct 990, 51 L.Ed.2d 260 (1977) ("When a fragmented Court decides
a case . . . the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest grounds."),
cited in Doe v. Beaumont Ind. School Dist., 2001 WL 69499, *30, n. 3 (5th
Cir. 2001); see also U.S. v. Ferguson, 211 F.3d 878, 885 (5th Cir. 2000)
(noting that the opinion of an equally-divided en banc court does not
disturb the prior precedent of this Circuit).
|||*fn64 Ex parte Young, 209 U.S. 123,
160 (1908) ("If the question of unconstitutionality, with reference,
at least, to the Federal Constitution, be first raised in a Federal court,
that court . . . has the right to decide it . . . ."). See also United
States v. Osborne, 22 U.S. 738, 846-51 (1828).
|||*fn65 Where the Eleventh Amendment
prohibits the commencement of a suit against a state in federal court,
the Fourteenth provides that no state shall deprive any person of life,
liberty, or property without due process of law. See Young, 209 U.S. at
149. Though Young avoided any pronouncement that the Fourteenth Amendment
altered the scope of the Eleventh, the Supreme Court has since recognized
that the Eleventh Amendment has less force when rights protected by the
Fourteenth Amendment are at stake. See Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 58 (1996) ("[T]he Fourteenth Amendment, by expanding
federal power at the expense of state autonomy, . . . fundamentally altered
the balance of state and federal power struck by the Constitution.");
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) ("[W]e think that
the Eleventh Amendment, and the principle of state sovereignty which it
embodies, are necessarily limited by the enforcement provisions of section
5 of the 14th Amendment."). That this case involves constitutional
rights protected by the 14th Amendment, as opposed to non-constitutional
federal rights, is thus significant.
|||*fn66 Young, 209 U.S. at 159 ("The
act to be enforced is alleged to be unconstitutional; and if it be so,
the use of the name of the state to enforce an unconstitutional act to
the injury of complainants is a proceeding without the authority of, and
one which does not affect, the state in its sovereign or governmental
capacity. It is simply an illegal act upon the part of a state official
in attempting, by the use of the name of the state, to enforce a legislative
enactment which is void because unconstitutional . . . The state has no
power to impart to [its officials] any immunity from responsibility to
the supreme authority of the United States.")
|||*fn67 See Coeur d' Alene, 117 S.Ct.
at 2034 (majority opinion) ("We do not . . . question the continuing
validity of the Ex parte Young doctrine."); Seminole Tribe, 116 S.Ct.
1114, 1131, n.14 (1996) (recognizing Ex parte Young as one of three significant
exceptions to the Eleventh Amendment bar on suits in federal court); Green,
106 S.Ct. at 426 ("Remedies designed to end a continuing violation
of federal law are necessary to vindicate the federal interest in assuring
the supremacy of that law."); Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89, 105-06 (1984) ("[T]he Young doctrine has
been accepted as necessary to permit the federal courts to vindicate federal
rights and hold state officials responsible to 'the supreme authority
of the United States.'") (citations omitted); Quern v. Jordan, 99
S.Ct. 1139, 1143 (1979); Scheur v. Rhodes, 94 S.Ct. 1683, 1687 (1974);
Georgia R. & Banking Co. v. Redwine, 72 S.Ct. 321, 324 (1952). See
also Judge Higginbotham's concurring opinion (Young "is a powerful
implementation of federalism necessary to the Supremacy Clause, a stellar
companion to Marbury and Martin v. Hunter's Lessee.").
|||*fn68 The majority's explanation
of "the connection" simply reiterates the causation and redressability
components of standing, while the majority's requirement that the officer
be threatening to exercise the duty is encompassed by the current injury-in-fact
analysis under standing.
|||*fn69 While it might be sensible
to do away with the Young fiction and recognize that the Fourteenth Amendment
and our federal structure require that states be sued in limited circumstances,
that would be beyond the power of this intermediate court. That is not,
however, what this opinion purports to do. In this sense, Judge Jolly's
caricature of my opinion as a gross departure from existing case law and
the Constitution fails to confront the Supreme Court's modern jurisprudence
on the interplay between Ex parte Young and the Eleventh Amendment in
any meaningful way.
|||*fn70 If the federal court declares
the contested statute unconstitutional, the state legislature may amend
or repeal the statute or the state courts may be persuaded by the decision
of the federal court. In any event, "[a]ll these possible avenues
of relief would be reached voluntarily by the States and would be completely
consistent with the concepts of federalism . . ." Id. at 484 (Rehnquist,
|||*fn71 Judge Higginbotham contends
that I propose a "generic exception to the Eleventh Amendment for
declaratory relief." This is simply not the case. As previously noted,
the declaratory form of relief sought by the plaintiffs is relevant to
the Eleventh Amendment inquiry only in so far as the Supreme Court has
consistently considered the intrusiveness of the relief sought when defining
the scope of Ex parte Young. That a declaration on these facts constitutes
the least intrusive form of relief available does not mean that other
forms of relief would necessarily violate the Eleventh Amendment. Yet,
I need not consider whether the Eleventh Amendment would impede our ability
to issue forms of relief that the plaintiffs do not have standing to seek.
That said, my approach to determining the Eleventh Amendment limits on
Ex parte Young would apply with equal force in cases involving injunctions
or other forms of relief.
|||*fn72 Five years after Roe v. Wade,
the State enacted an abortion regulation statute, but a district court
struck down several provisions as unconstitutional. Margaret S. v. Edwards,
488 F. Supp. 181 (E.D. La. 1980). The State promptly passed another statute
that required, inter alia, costly and unnecessary ultrasound testing prior
to abortion, hospitalization for post-first-trimester abortions, untenable
presumptions of fetus viability, second opinions regarding necessity of
an abortion to preserve a mother's health, and parental consent without
adequate judicial bypass provisions. A district court declared most of
these provisions unconstitutional, Margaret S. v. Treen, 597 F. Supp.
636 (E.D. La. 1984), and we affirmed that declaration. See Margaret S.,
794 F.2d at 999.
|||*fn73 The plurality states that
the parties "vigorously pressed" the jurisdictional arguments
before this court by referring to Patsy v. Board of Regents, 457 U.S.
496, 515 n.19 (1982). In Patsy, the Supreme Court declined to rule on
the Eleventh Amendment issue because it was only mentioned in passing
by the state before four courts, which had not addressed it. The Supreme
Court chose to rule upon the merits of the exhaustion of remedies issue,
which was initially presented in a Rule 12(b)(6) motion to dismiss, because
it was raised and decided by the district court and this court (both panel
and en banc) and "vigorously pressed" before the Court. It light
of Patsy's procedural history, and in light of the fact that in this action
we raised, and the parties briefed, the Eleventh Amendment issue on the
court's own initiative after the panel decision, it is improper to suggest
that the parties pursued this issue with the same vigor as the parties
in Patsy. See Coolbaugh v. Louisiana, 136 F.3d 430, 442 n.5 (5th Cir.
1998) (Smith, J., dissenting) ("Raising [the Eleventh Amendment issue]
sua sponte is problematic . . . in light of Patsy.").
|||*fn74 In addition, the constitutionality
of a statute may not be attacked in a declaratory judgment action unless
the Attorney General is served with a copy of the proceeding, and the
Attorney General is entitled to be heard and, at his discretion, to represent
or supervise the representation of the interests of the state in the proceeding.
See Vallo v. Gayle Oil Co., Inc., 646 So.2d 859 (La. 1994) (citing La.
Civ. Code art. 1880; La. Rev. Stat. Ann. § 49:257(B)); Bruneau v. Edwards,
517 So.2d 818, 824 (La. App. 1 Cir. 1987).
|||*fn75 Medical authorities neither
fully understand how IUDs work nor universally accept that IUDs are abortifacients,
although there is strong evidence that an IUD prevents a conceptus (a
fertilized female ovum, in the words of Act 825) from implanting in the
uterine wall, thus terminating an intrauterine pregnancy. Compare John
Whitridge, Williams Obstetrics 931 (18th ed. 1989) ("The mechanisms
of action of the chemically inert device have not been defined precisely.
Interference with successful implantation of the fertilized ovum in the
endometrium seems to be the most prominent action.") with How IUDs
Prevent Pregnancy, Population Reports, Population Information Program
of the Johns Hopkins School of Hygiene and Public Health v. XXIII no.
5 (1995) (reporting that studies suggest IUDs prevent sperm from fertilizing
ova and do not support the common belief that they usually work by preventing
implantation.); see also Leon Speroff, Clinical Gynecologic Endocrinology
and Infertility 782 (5th ed. 1994).
|||*fn76 Bethesda Lutheran Homes and
Servs., Inc. v. Leean, 122 F.3d 443 (7th Cir. 1997) (Posner, J.) (holding
that out-of-state residents excluded by state law from a program to subsidize
in-state hospitals could, under Young, sue state officials responsible
for administering the program to enjoin them from exclusion); Clajon Prod.
Corp. v. Petera, 70 F.3d 1566, 1571 n.9 (10th Cir. 1995) (allowing, pursuant
to Young, a suit by out-of-state residents against state officials to
enjoin them from excluding the residents from a favorable method of obtaining
|||*fn77 To this end, the majority's
citation of Muskrat v. United States, 219 U.S. 346 (1911), and Gritts
v. Fisher, 223 U.S. 640 (1912), is inapposite. Muskrat concerned Congress's
statutory creation of jurisdiction in federal court allowing individuals
to sue the United States for judicial review of the constitutionality
of certain statutes. The Supreme Court held that such statutory creation
of jurisdiction did not create a case or controversy because the United
States had no interest or stake in the litigation adverse to the plaintiffs.
In this action, Act 825 does not confer jurisdiction in federal court
to sue a particular defendant, and it is clear that Appellees have a distinct
case or controversy against Appellants because Appellants' interests are
directly adverse to Appellees' interests. Moreover, contrary to the majority's
explanatory parenthetical that states that the defendant in Gritts was
sufficiently adverse to the plaintiffs to create an Article III controversy,
Gritts does not even mention Article III case or controversy requirements
or standing. These decisions simply do not support the majority's reasoning.
|||*fn78 The majority's interpretation
of Mobil Oil belies the Fourth Circuit's express holding. Contrary to
the majority's conclusion that "controversy was founded upon the
Attorney General's explicit statutory authority," the Fourth Circuit
held that such statutory authority is "irrelevant" because "[w]hether
Mobil has a dispute with its franchisees does not bear on whether it has
a dispute with the Attorney General." Mobil Oil, 940 F.2d at 76 (footnote
omitted); see also id. n.2 ("'A controversy exists not because the
state official is himself a source of injury but because the official
represents the state whose statute is being challenged as the source of
the injury.'" (quoting Wilson v. Stocker, 819 F.2d 947 (10th Cir.
1987)). The court added that even in private enforcement suits, the Attorney
General "could intervene" to defend the constitutionality of
the statute under 28 U.S.C. § 2403(b), and cited for support a private
medical malpractice suit in which the Attorney General had so intervened.
Id. at 76-77 (citing Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989)). Thus,
Mobil Oil is properly read as equating an official's independent power
of enforcing a statute with the power to intervene in an action to defend
that statute to create "an odor of a 'case or controversy."
Id. at 77; see also id. at 75 ("[T]he Declaratory Judgment Act was
designed . . . [to] encourage a person aggrieved by laws he considers
unconstitutional to seek a declaratory judgment against the arm of the
state entrusted with the state's enforcement power." (emphasis added))
|||*fn79 The majority's suggestion
that Louisiana courts are available to hear Appellees' claims is untenable.
To the extent the majority suggests that the Eleventh Amendment reflects
a forum-selection theory, the Supreme Court in Alden v. Maine, 119 S.
Ct. 2240, 2263 (1999), rejected such theory by holding that the Eleventh
Amendment embodies a broad state sovereign immunity that applies in both
federal and state courts. Id. ("Young is based in part on the premise
that sovereign immunity bars relief against States and their officers
in both state and federal courts, and that certain suits for declaratory
or injunctive relief against state officers must therefore be permitted
if the Constitution is to remain the supreme law of the land.").
Moreover, according to a majority of current Supreme Court Justices it
is improper to consider the availability of state courts in determining
whether relief pursuant to Young is permissible. Idaho v. Coeur D'Alene
Tribe of Idaho, 117 S. Ct. 2028, 2045 (1997) (O'Connor, J., joined by
Scalia, Thomas, JJ., concurring); id. at 2048 (Souter, J., joined by Stevens,
Ginsburg, Breyer, JJ., dissenting).
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