by Jane Perkins, NHeLP
August 1999
During the 1998-99 Supreme Court Term, a number of decisions received widespread public attention -- most notably a group of decisions that interpreted the Americans with Disabilities Act. Included among the final decisions of the Term were three opinions which did not receive such notice. However, these decisions could have an incredibly negative effect on individuals' rights to go to court to force states to comply with federal legislation -- including the Americans with Disabilities Act.
These cases, one from Maine and two from Florida, solidly established this Supreme Court as an anti-federalism, pro-active states' rights body. All three decisions curtail the power of Congress to provide individuals with a judicial remedy when they contend that their federal rights have been violated by the state. Each case was decided by the identical 5-4 margin, with the majorities consisting of Chief Justice Rehnquist and Justices Scalia, Thomas, O'Connor, and Kennedy.
The Maine Case -- Supreme Courts Looks to England for Guidance
The first pronouncement in favor of states' sovereign immunity came in Alden v. Maine, 67 U.S.L.W. 4601 (U.S. 1999). Probation officers filed the case against the State of Maine, claiming that the state owed them overtime pay pursuant to a piece of federal worker protection legislation, the Fair Labor Standards Act or FLSA. The FLSA was passed pursuant to Article I of the Constitution, which sets forth the powers of Congress. The legislation specifically authorized private lawsuits against offending states.
The probation officers originally sued in federal court, but their case was dismissed following the Supreme Court's 1996 decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Seminole Tribe held that the Eleventh Amendment provides the state with immunity from a lawsuit in federal court and that Congress cannot abrogate this immunity in a statute passed under Article I of the Constitution. Locked out of federal court, the probation officers turned to state court to get their wages. However, the state court dismissed the case, again citing sovereign immunity. The workers appealed to the U.S Supreme Court, which then took its turn to send the workers home empty-handed.
In its decision, the Supreme Court held that Congress lacks the power under Article I to subject non-consenting states to private lawsuits in their own state courts. Interestingly, the Court could not base its decision on strict construction of the Eleventh Amendment or any other Constitutional provision, because the Constitution does not expressly say what the Court held. Rather, the Court looked to the "fundamental postulates implicit in the constitutional design." In other words, the Court based the decision on activities that occurred before the Constitution was ratified to find "the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments." The majority cited The Federalist Papers, the debates over ratification of the Constitution, and earlier law from England to say that the nation understood from its founding that Article I did not take away the states' pre-existing immunity from private suits.
The Florida Cases -- Restricting Due Process
In the College Savings Bank cases, the Court looked at the extent of Congress' remedial powers to enforce rights guaranteed by the 14th Amendment. Both of the cases involved a state agency, the Florida Prepaid Postsecondary Education Expense Board, and the College Savings Bank of New Jersey. The Bank claimed that the Florida agency was marketing products that infringed on its patents and that it was engaging in false advertising concerning the Bank's products.
In the College Savings Bank I Case, the Bank sued in federal court, charging the State with false advertising in violation of the Lanham Act. The Lanham Act had been amended in 1992 expressly to abrogate states' 11th Amendment immunity and allow individuals to sue states in federal court. The provision was passed pursuant to Section 5 of the 14th Amendment.
However, the Court declared the Lanham Act provisions unconstitutional, holding that Congress had overstepped the bounds of the 14th Amendment. The 14th Amendment protects against the deprivation of property without due process of law, and Section 5 of the Amendment authorizes Congress to pass remedial legislation. The Bank argued that it had a property right to be free from false advertising. However, the Court held that "the activity of doing business, or the activity of making a profit is not property in the ordinary sense -- and it is only that, and not any business asset, which is impinged upon by a competitor's false advertising." In other words, the interest in being free from false advertising is not the type of property interest that is protected by the 14th Amendment. Notably, in reaching this decision the Court also ruled that a state does not "constructively waive" its 11th Amendment immunity from suit in federal court by engaging in federally regulated conduct.
In the College Savings Bank II Case, the Bank charged the Florida agency with patent infringement and based its federal court lawsuit on the Patent Remedy Act. This piece of legislation, which expressly authorized the suit, was based on Congress' Article I powers over patents and commerce and, again, on the 14th Amendment. Florida argued that Congress did not have the power under either Article I or the 14th Amendment to abrogate its sovereign immunity.
The Court agreed and, once again, shielded the state's activities from federal court review. Because of its ruling in Seminole Tribe, the Court had little trouble dispensing with Article I as the source of the Congressional authority. Turning to the 14th Amendment, the Court found that the patents were property protected by due process. However, it held that the Patent Remedy Act "cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause."
To reach its decision, the Court discussed the types of remedies that it thinks are authorized by Section 5 of the 14th Amendment. According to the Court, to be a valid exercise of authority under Section 5, the provision must reflect a proportionality between the injury to be remedied and the measure being used to put an end to the injury. In a decision that the dissent said "threatens to read Congress' power to pass prophylactic legislation out of § 5 altogether," the Court found the Patent Remedy Act did not pass muster. Looking at the legislative history to the Patent Remedy Act, the Court found little Congressional concern for providing remedies against states for infringement. Nor did it find "widespread and persistent deprivation of constitutional rights" by the states that would justify the need for Congress to act under Section 5 of the 14th Amendment. Rather, the Court decided that the abrogation of sovereign immunity in the Patent Remedy Act was "out of proportion to a supposed remedial or preventive object." Moreover, because the statute expressly allowed states to be brought "immediately ... in federal court for all kinds of possible patient infringement and for an indefinite duration," it extended beyond the reasonable means needed to achieve Congress's desired goal.
The Future -- What are The Remaining Options When the State Violates the Law?
These decisions narrow the avenues for judicial relief for individuals who are injured by a state's violation of a federal law. There are remaining options, however, and these include:
(1) The parties can still sue state officials for prospective, injunctive and declaratory relief (but not damages) in federal and state court. The Alden decision expressly acknowledged this form of relief. This is significant to Medicaid beneficiaries because the vast majority of their cases have been limited to this type of prospective relief since 1974 when the Supreme Court held that the Eleventh Amendment precludes a federal court from awarding retroactive money relief against a state or state officials sued in their official capacities.
(2) Presumably, complaining parties can still sue state officials in their individual capacities.
(3) The injured party can bring an action against the state in those situations where the state has consented to the private suit. This consent would need to be expressly given by an entity that has the authority to consent.
(4) The Alden court also noted that states can be sued by other states or by the federal government. Thus, injured parties can petition the federal government to take enforcement action against the offending state.
(5) Municipalities, counties and cities can be sued if they are violating the federal law because the Eleventh Amendment applies only to the states.
(6) The College Savings Bank cases do not preclude actions against the state if the complaining party can prove that the state is manipulating its immunity in a systemic fashion to discriminate against federal causes of action.
(7) Depending on the facts of the case and the state law, victims might be able to sue the state in state court on causes of action based on state statutes, in tort, for restitution, for deceit, conversion, or unfair competition.
(8) The state legislature or constitution could override the sovereign immunity expressly to allow a private suit.
(9) And despite the negative holdings in the College Savings Bank cases, complaining parties can still bring private actions against states to enforce federal statutes when Congress is authorized by the 14th Amendment to override sovereign immunity.
Enforcement of statutes passed pursuant to the 14th Amendment
It is this last exception which will be the focus of attention in the coming months as courts look at whether the 14th Amendment has authorized Congress to abrogate state's sovereign immunity in the context of other important federal statutes. The trio of cases from this past Term raise a number of questions for courts to examine: (1) Has Congress unequivocally expressed its intent to abrogate state sovereign immunity? (2) If so, has Congress acted pursuant to a valid exercise of constitutional power pursuant to Section 5 of the 14th Amendment? To answer this second question, courts will look at such questions as: Is the property or liberty interest that is being protected by the statute recognized by the 14th Amendment? If so, are the provisions remedial in nature? Are the provisions targeted to the injuries being addressed (as opposed to all kinds of possible injuries)? Are they of a limited duration? What sort of evidence, particularly legislative history, supports Congress' action to override state sovereign immunity?
Already, the Eighth Circuit Court of Appeals has cited this Term's trio of cases in holding that extension of Title II of the Americans with Disabilities Act to the states exceeded Congress' authority under section 5 of the 14th Amendment. In Alsbrook v. City of Maumelle, No. 97-1825 (8th Cir. July 23, 1999), the circuit court also held that state officials could not be sued in their individual capacities because Title II provides disabled individuals redress for discrimination by a "public entity," a term that does not include individuals. In refusing to abrogate state sovereign immunity, the court said it matters what kind of discrimination the 14th Amendment prohibits and whether the ADA was aimed at that kind of discrimination. And despite extensive ADA legislative history detailing the discrimination faced by individuals with disabilities, the court refused to apply the provision to the states. "Congress may not pass legislation which attempts to expand, enhance, or add to the guarantees of the 14th Amendment" but must be tied to "enforcing judicially recognized equal protection provisions." This case may find its way to the Supreme Court and, in the meantime, will certainly cause confusion regarding ADA enforcement.
Already, the Supreme Court has agreed to look at Congressional attempts to abrogate state immunity under the 14th Amendment in the:
Age Discrimination in Employment Act, Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted, 67 U.S.L.W. 3467 (Jan. 25, 1999); and
False Claims Act, United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, cert. granted, 67 U.S.L.W. 3784 (June 24, 1999).
© 1999 National Health Law Program
by Jane Perkins, NHeLP
August 1999
During the 1998-99 Supreme Court Term, a number of decisions received widespread public attention -- most notably a group of decisions that interpreted the Americans with Disabilities Act. Included among the final decisions of the Term were three opinions which did not receive such notice. However, these decisions could have an incredibly negative effect on individuals' rights to go to court to force states to comply with federal legislation -- including the Americans with Disabilities Act.
These cases, one from Maine and two from Florida, solidly established this Supreme Court as an anti-federalism, pro-active states' rights body. All three decisions curtail the power of Congress to provide individuals with a judicial remedy when they contend that their federal rights have been violated by the state. Each case was decided by the identical 5-4 margin, with the majorities consisting of Chief Justice Rehnquist and Justices Scalia, Thomas, O'Connor, and Kennedy.
The Maine Case -- Supreme Courts Looks to England for Guidance
The first pronouncement in favor of states' sovereign immunity came in Alden v. Maine, 67 U.S.L.W. 4601 (U.S. 1999). Probation officers filed the case against the State of Maine, claiming that the state owed them overtime pay pursuant to a piece of federal worker protection legislation, the Fair Labor Standards Act or FLSA. The FLSA was passed pursuant to Article I of the Constitution, which sets forth the powers of Congress. The legislation specifically authorized private lawsuits against offending states.
The probation officers originally sued in federal court, but their case was dismissed following the Supreme Court's 1996 decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Seminole Tribe held that the Eleventh Amendment provides the state with immunity from a lawsuit in federal court and that Congress cannot abrogate this immunity in a statute passed under Article I of the Constitution. Locked out of federal court, the probation officers turned to state court to get their wages. However, the state court dismissed the case, again citing sovereign immunity. The workers appealed to the U.S Supreme Court, which then took its turn to send the workers home empty-handed.
In its decision, the Supreme Court held that Congress lacks the power under Article I to subject non-consenting states to private lawsuits in their own state courts. Interestingly, the Court could not base its decision on strict construction of the Eleventh Amendment or any other Constitutional provision, because the Constitution does not expressly say what the Court held. Rather, the Court looked to the "fundamental postulates implicit in the constitutional design." In other words, the Court based the decision on activities that occurred before the Constitution was ratified to find "the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments." The majority cited The Federalist Papers, the debates over ratification of the Constitution, and earlier law from England to say that the nation understood from its founding that Article I did not take away the states' pre-existing immunity from private suits.
The Florida Cases -- Restricting Due Process
In the College Savings Bank cases, the Court looked at the extent of Congress' remedial powers to enforce rights guaranteed by the 14th Amendment. Both of the cases involved a state agency, the Florida Prepaid Postsecondary Education Expense Board, and the College Savings Bank of New Jersey. The Bank claimed that the Florida agency was marketing products that infringed on its patents and that it was engaging in false advertising concerning the Bank's products.
In the College Savings Bank I Case, the Bank sued in federal court, charging the State with false advertising in violation of the Lanham Act. The Lanham Act had been amended in 1992 expressly to abrogate states' 11th Amendment immunity and allow individuals to sue states in federal court. The provision was passed pursuant to Section 5 of the 14th Amendment.
However, the Court declared the Lanham Act provisions unconstitutional, holding that Congress had overstepped the bounds of the 14th Amendment. The 14th Amendment protects against the deprivation of property without due process of law, and Section 5 of the Amendment authorizes Congress to pass remedial legislation. The Bank argued that it had a property right to be free from false advertising. However, the Court held that "the activity of doing business, or the activity of making a profit is not property in the ordinary sense -- and it is only that, and not any business asset, which is impinged upon by a competitor's false advertising." In other words, the interest in being free from false advertising is not the type of property interest that is protected by the 14th Amendment. Notably, in reaching this decision the Court also ruled that a state does not "constructively waive" its 11th Amendment immunity from suit in federal court by engaging in federally regulated conduct.
In the College Savings Bank II Case, the Bank charged the Florida agency with patent infringement and based its federal court lawsuit on the Patent Remedy Act. This piece of legislation, which expressly authorized the suit, was based on Congress' Article I powers over patents and commerce and, again, on the 14th Amendment. Florida argued that Congress did not have the power under either Article I or the 14th Amendment to abrogate its sovereign immunity.
The Court agreed and, once again, shielded the state's activities from federal court review. Because of its ruling in Seminole Tribe, the Court had little trouble dispensing with Article I as the source of the Congressional authority. Turning to the 14th Amendment, the Court found that the patents were property protected by due process. However, it held that the Patent Remedy Act "cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment's Due Process Clause."
To reach its decision, the Court discussed the types of remedies that it thinks are authorized by Section 5 of the 14th Amendment. According to the Court, to be a valid exercise of authority under Section 5, the provision must reflect a proportionality between the injury to be remedied and the measure being used to put an end to the injury. In a decision that the dissent said "threatens to read Congress' power to pass prophylactic legislation out of § 5 altogether," the Court found the Patent Remedy Act did not pass muster. Looking at the legislative history to the Patent Remedy Act, the Court found little Congressional concern for providing remedies against states for infringement. Nor did it find "widespread and persistent deprivation of constitutional rights" by the states that would justify the need for Congress to act under Section 5 of the 14th Amendment. Rather, the Court decided that the abrogation of sovereign immunity in the Patent Remedy Act was "out of proportion to a supposed remedial or preventive object." Moreover, because the statute expressly allowed states to be brought "immediately ... in federal court for all kinds of possible patient infringement and for an indefinite duration," it extended beyond the reasonable means needed to achieve Congress's desired goal.
The Future -- What are The Remaining Options When the State Violates the Law?
These decisions narrow the avenues for judicial relief for individuals who are injured by a state's violation of a federal law. There are remaining options, however, and these include:
(1) The parties can still sue state officials for prospective, injunctive and declaratory relief (but not damages) in federal and state court. The Alden decision expressly acknowledged this form of relief. This is significant to Medicaid beneficiaries because the vast majority of their cases have been limited to this type of prospective relief since 1974 when the Supreme Court held that the Eleventh Amendment precludes a federal court from awarding retroactive money relief against a state or state officials sued in their official capacities.
(2) Presumably, complaining parties can still sue state officials in their individual capacities.
(3) The injured party can bring an action against the state in those situations where the state has consented to the private suit. This consent would need to be expressly given by an entity that has the authority to consent.
(4) The Alden court also noted that states can be sued by other states or by the federal government. Thus, injured parties can petition the federal government to take enforcement action against the offending state.
(5) Municipalities, counties and cities can be sued if they are violating the federal law because the Eleventh Amendment applies only to the states.
(6) The College Savings Bank cases do not preclude actions against the state if the complaining party can prove that the state is manipulating its immunity in a systemic fashion to discriminate against federal causes of action.
(7) Depending on the facts of the case and the state law, victims might be able to sue the state in state court on causes of action based on state statutes, in tort, for restitution, for deceit, conversion, or unfair competition.
(8) The state legislature or constitution could override the sovereign immunity expressly to allow a private suit.
(9) And despite the negative holdings in the College Savings Bank cases, complaining parties can still bring private actions against states to enforce federal statutes when Congress is authorized by the 14th Amendment to override sovereign immunity.
Enforcement of statutes passed pursuant to the 14th Amendment
It is this last exception which will be the focus of attention in the coming months as courts look at whether the 14th Amendment has authorized Congress to abrogate state's sovereign immunity in the context of other important federal statutes. The trio of cases from this past Term raise a number of questions for courts to examine: (1) Has Congress unequivocally expressed its intent to abrogate state sovereign immunity? (2) If so, has Congress acted pursuant to a valid exercise of constitutional power pursuant to Section 5 of the 14th Amendment? To answer this second question, courts will look at such questions as: Is the property or liberty interest that is being protected by the statute recognized by the 14th Amendment? If so, are the provisions remedial in nature? Are the provisions targeted to the injuries being addressed (as opposed to all kinds of possible injuries)? Are they of a limited duration? What sort of evidence, particularly legislative history, supports Congress' action to override state sovereign immunity?
Already, the Eighth Circuit Court of Appeals has cited this Term's trio of cases in holding that extension of Title II of the Americans with Disabilities Act to the states exceeded Congress' authority under section 5 of the 14th Amendment. In Alsbrook v. City of Maumelle, No. 97-1825 (8th Cir. July 23, 1999), the circuit court also held that state officials could not be sued in their individual capacities because Title II provides disabled individuals redress for discrimination by a "public entity," a term that does not include individuals. In refusing to abrogate state sovereign immunity, the court said it matters what kind of discrimination the 14th Amendment prohibits and whether the ADA was aimed at that kind of discrimination. And despite extensive ADA legislative history detailing the discrimination faced by individuals with disabilities, the court refused to apply the provision to the states. "Congress may not pass legislation which attempts to expand, enhance, or add to the guarantees of the 14th Amendment" but must be tied to "enforcing judicially recognized equal protection provisions." This case may find its way to the Supreme Court and, in the meantime, will certainly cause confusion regarding ADA enforcement.
Already, the Supreme Court has agreed to look at Congressional attempts to abrogate state immunity under the 14th Amendment in the:
Age Discrimination in Employment Act, Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted, 67 U.S.L.W. 3467 (Jan. 25, 1999); and
False Claims Act, United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, cert. granted, 67 U.S.L.W. 3784 (June 24, 1999).
© 1999 National Health Law Program