THIS SHOWS THE LAW THAT LIMITS THE PUBLIC'S ABILITY TO SEEK FINANCIAL COMPENSATION BEYOND A CURSORY AMOUNT.  YOU'LL NOTICE THAT THIS SAME LOW CAP FOR COMPENSATION EXISTS FOR PENALTIES ON CORPORATE AWARDS AS WELL.  SO, IF THE CITIZENS OF BALTIMORE WERE TO FILE A LAWSUIT AS A CLASS ACTION FOR FAILURE TO SECURE FRAUD PENALTIES FOR EXAMPLE, WE AS A GROUP WOULD ONLY BE ABLE TO ASK FOR $500,000.  WITH A POPULATION OF AROUND 160,000 WE COULD EACH BUY A LATTE.  THE IMPORTANT THING IS ESTABLISHING PRECEDENT AS WE REMOVE THE CAP.  THE CITY SHOULD HAVE INSURANCE FOR LARGE LAWSUITS.

    

2002 FINAL STATE
LEGISLATIVE PROGRAM

CONTROVERSIAL ISSUE

ISSUE: LOCAL TORT CLAIMS ACT

SUMMARY: The Local Tort Claims Act was enacted in 1987, and has been amended several times since then, to provide citizens injured by local government officials with a remedy for compensation, while at the same time protecting local government employees from the threat of a multitude of lawsuits. Prior to enactment of this legislation a tort victim could not sue local governments because of the sovereign immunity doctrine, and had no recourse but to sue local government employees responsible for the tortuous act.

The definition of "local government" under the Act includes all counties and Baltimore City, municipal corporations, community colleges, county libraries, special taxing districts, nonprofit community service corporations and local housing authorities. The liability limit of local governments is set at $200,000 per individual and $500,000 per total claims that arise in each occurrence. Local governments may not be held liable for either direct or vicarious liability that may result in punitive damages, but may indemnify employees for judgements for punitive damages up to $200,000 per person and $500,000 per claim.

In principle, the Local Tort Claims Act is designed to mirror the Maryland Tort Claims Act in that it accepts responsibility for most acts or omissions of employees committed within the scope of employment while it requires employees to be responsible for any acts involving malice.

Bills that sought to further modify the liability of a local government for its employees were submitted in 1993 but were not passed. No action on this issue was taken in 1994, 1995, or 1996, but in 1997 a bill was approved to include the Baltimore City Police Department in the definition of "local government" under the Local Tort Claims Act. There were no bills affecting the Act in 1998.  In 1999, adjustments to the Act were passed concerning indemnification of law enforcement officers and interest on judgements.  In 2000, there were several bills dealing with the Local Tort Claims Act, but only a minor change was enacted.

During the interim between the 2000 and 2001 sessions, the Court of Appeals, in a unanimous decision, voided the cap on damages for local governments (Housing Authority of Baltimore City v. Crystal Bennett). The 2001 General Assembly however, trumped the Court by passing a bill to make the Local Government Tort Claims Act apply retroactively to 1987. Additional challenges to retroactive legislation presently are pending in the Court of Appeals.

MSBA 2002 POSITION: Monitor specific bills that would modify the Local Tort Claims Act and oppose any additional restrictions on a citizen's right to civil justice.

SAMPLE LEGISLATION:
Senate Bill 486, General Assembly of Maryland, 1997
Senate Bill 715, General Assembly of Maryland, 2000
Senate Bill 264, General Assembly of Maryland, 2001

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WE NEED TO LOOK TOWARDS LEGAL METHODS TO FORCE ENFORCEMENT OF LAW AND CONSTITUTIONAL RIGHTS.  NORMALLY A JUSTICE ORGANIZATION WOULD DO THIS, BUT AS THEY AREN'T, CITIZENS NEED TO DO IT THEMSELVES!!!!  FINANCIAL FRAUD PENALTIES AND EQUAL PROTECTION LAWS IN HOUSING AND EDUCATION?

LET'S INVESTIGATE!!!

Suing Your Federal Government for Civil Rights Violations By David C. Grossack, Constitutional Attorney Common Law Copyright © 1994
All Rights Reserved

On the occasion of the 200th anniversary of the Bill Of Rights, many attorneys may not realize that these rights each contain within them an intrinsic enabling authority for the purpose of redressing violations of these rights by those federal employees entrusted to uphold and protect them.

It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]

Blackstone's ideas became embodied in the Federalist papers, and in the writings of James Madison on property interests, which he defined in quite broad terms:

"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage ... [A] man has a property in his opinions, and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties, and free choice of the objects on which to employ them."

"The protection of these faculties" Madison wrote in The Federalist No. 10, "is the first object of government."

As Madison might have anticipated, and as modern students of law and history may realize, in the pursuit of its various other objectives, the federal government from time to time treads on these rights and "faculties" and on the natural rights of mankind whose protection is found in the Ninth Amendment of the U.S. Constitution.

When Congress enacted Title 42 U.S. Code §1983 and other federal civil rights laws for the redress of violations of these rights, it did not extend liability to federal officials and employees. Instead, these laws were held to apply to "state action", and the actions of county and municipal government (except when federal officials conspired with others. See Fonda v. Gray, 1983(CA 9) CAL 707 F.2d. 435.)

The dilemma on how to obtain compensation for victims of "constitu tional torts" by federal actors remained essentially unresolved until the case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971).

Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.

Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. [3]

Litigants who seek to bring claims against federal officials for abuses of their authority have been confused concerning the proper way to characterize their actions in the pleadings. Generally speaking, how one drafts a complaint and not what evidence is to be introduced determines whether a claim can survive as a federal cause of action. Tully v. Mott Supermarkets, Inc., 337 F.Supp. 834, 844 D.N.J. (1972).

For example, cases have held that if other theories of recovery are pleaded, a Bivens action must fail. This has forced attorneys to select whether they wish to use the Federal Tort Claims Act (Title 28 U.S. Code § 2679) and its strict presentment requirements and other federal law or to rely on a Bivens theory. A complaint alleging both theories are at risk of a dispositive motion. Serra v. Pichardo, 786 F.2d. 237 (6th Cir.)

Another easy mistake to make is in deciding who to name as a defendant. A lawsuit naming the FBI or United States Department of Justice per se as defendants may fail because the agencies are likely to raise certain immunity defenses which have yet to be abolished.

Federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)

Although certain federal officials have absolute immunity from private suit, most executive officials enjoy only qualified immunity. The rationale for the distinction is that higher officials require greater liability than officials with less complex and discretionary responsibilities. Hatori v. Haya, 751 F.Supp. 1401.

Any action is considered to be against the "sovereign" and hence fails to state a claim if judgment would "interfere with public administration, or compel the United States to act in foreign policy, or enjoin foreign policy. (Sanchez Espinola v. Reagan, 770 F.2d. 202, Rochfort v. Gibbs, 696 F.Supp. 1151, WD Michigan, 1988.)

Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).

When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

Bivens actions, again, are by no means an exclusive remedy for redressing abuses of authority by federal government employees, even in a political context. In the celebrated case of Socialist Workers Party v. Attorney General, 596 F.2d. 58 (1979), 444 U.S. 903 (1979) (cert. denied) one of the many claims of the plaintiff, a Trotskyite communist organization, was for 193 surreptitious entries or burglaries committed by the F.B.I. Another set of claims was for the use of disruptive informants in the organization, which successfully proved itself to be a non-violent, educational group more involved in promoting and discussing ideas rather than in any violent act.

Judge Thomas Griesa's final decision in the case allowed recovery under the Federal Tort Claims Act for the intentional torts of invasion of privacy for the use of informants as well as for the F.B.I.'s burglaries, under a theory of trespass. Many other counts were dismissed in the case for failure to adhere to the procedural requirements of the Federal Tort Claims Act (FTCA).

Why plaintiff's counsel selected the FTCA rather than the Bivens theory of recovery is not known.

The social consequences of having available remedies such as Bivens and the FTCA are significant. Together with the Freedom of Information Act, The Privacy Act, and the willingness of disillusioned persons within government to act as "whistleblowers," a limited deterrent effect exists to serious violations of civil rights by government.

The sensation caused by the illegal federally sponsored research experiments on mentally disabled children sequestered for nearly 40 years and revealed only recently indicates the changes in public sentiments.

Nevertheless, many courts have considered civil rights claims to be "disfavored actions." Consider the court in Littleton v. Berbling, 468 F.2d. 390 (7th Cir. 1971):

"The civil damages suit is worthless, especially if the victim of oppression is a social misfit or an unsavory character."

The words of Justice Louis Brandeis however, offer another view:

"Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to come a law unto himself. It invites anarchy. (United States v. Olmstead, 277 U.S. 438 (1928).

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WE NEED TO LOOK TOWARDS LEGAL METHODS TO FORCE ENFORCEMENT OF LAW AND CONSTITUTIONAL RIGHTS.  NORMALLY A JUSTICE ORGANIZATION WOULD DO THIS, BUT AS THEY AREN'T, CITIZENS NEED TO DO IT THEMSELVES!!!!  FINANCIAL FRAUD PENALTIES AND EQUAL PROTECTION LAWS IN HOUSING AND EDUCATION?
Suing the State (and Other Government Entities) in the Twenty-First Century
(Or at Least in March 2002)
Copyright  2002 Advocacy, Inc.  All rights reserved.

Brian East, Esq.
Advocacy, Inc.
7800 Shoal Creek Blvd # 171-E
Austin, TX 78757
Tel: (512) 454-4816
Fax: (512) 323-0902
E-mail: beast@advocacyinc.org

1.  Who are you suing?

1. Sometimes it's hard to tell if an entity is an "arm of the state," or a local government entity, and it's not always obvious from the name. Compare Chisolm v. McManimon, 275 F.3d 315, 322-323 (3d Cir. 2001) (prior to unification, county courts were not an arm of state), with Reiff v. Philadelphia County Court of Common Pleas, 827 F. Supp. 319, 324 (E.D. Pa. 1993) (court of common pleas is an arm of the state); and Clark v. Tarrant County, Texas, 798 F.2d 736, 744-745 (5th Cir. 1986) (county adult probation department was an arm of the state), with Flores v. Cameron County, Texas, 92 F.3d 258, 264-269 (5th Cir. 1996) (county juvenile probation board not an arm of the state).
   
2. This distinction is important because an "arm of the state" can claim 11th Amendment immunity, while a local government entity (e.g., a county, municipal corporation, or other political subdivision of the state) generally cannot. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001).
   
3. Factors for assessing whether an entity is an arm of the state are described in, among other cases, Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (Ohio school board was not arm of the state); Chisholm, supra, 275 F.3d at 323; Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001) (regional transportation authority not an arm of the state); and Brotherton v. Cleveland, 173 F.3d 552, 561 (6th Cir. 1999) (eye bank, while a "state actor" subject to § 1983, was not an arm of the state). See also "Circumventing the Eleventh Amendment in the Third Circuit," 43 Vill. L. Rev. 923, 937 n.83 (1998); Wright & Miller, Federal Practice & Procedure § 3524 at nn.30-45.4.
   
4. Some particular examples:

i.  School districts - in most states, they are local governmental entities with no 11th Amendment immunity. Duke v. Grady Mun. Schools, 127 F.3d 972 (10th Cir. 1997) (New Mexico schools); Ambus v. Granite Board of Education, 995 F.2d 992, 995 (10th Cir. 1993) (Utah); Lopez v. Houston Independent School District, 817 F.2d 351, 353 (5th Cir. 1987) (Texas); Lenzo v. School City of East Chicago, 140 F. Supp.2d 947, 959-962 (N.D. Ind. 2001) (and cases cited); Herrera v. Russo, 106 F. Supp.2d 1057 (D.Nev. 2000). See also Wright & Miller, Federal Practice & Procedure § 3524 at nn. 22-29. But cf. Belanger v. Madera Unified School District, 963 F.2d 248 (9th Cir. 1992), cert. denied, 507 U.S. 919 (1993) (holding California school districts are arms of the state); Biggs v. Board of Educ. of Cecil County, 2002 WL 370195, at*7 (D.Md. March 6, 2002).

ii.  Local MHMR authorities - Farias v. Bexar County Board of Trustees for MHMR Services, 925 F.2d 866, 874 (5th Cir.), cert. denied, 502 U.S. 866 (1991) (not an arm of the state).

iii.  Transit systems - Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001) (WMATA is an arm of the state); Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343 (10th Cir. 1997) (not an arm of the state); Access Living Metro v. Chicago Transit Authority, 2001 WL 818789 (N.D. Ill. Mar 12, 2001) (not an arm of the state).

iv.  Other entities - see Wright & Miller, Federal Practice & Procedure § 1110 at n.8 and § 3524 at nn. 33-38.

2.  Suing the state (or state agency, or an "arm of the state")

a.  Damages - if you are suing the state, and you are seeking damages: WE WANT DAMAGES FROM FRAUD YOU FAILED TO COLLECT!

i.  First consider whether or not the state has waived any claim of immunity.

(1)  To waive its 11th Amendment immunity, a state must express its consent to suit unequivocally. Hibbs v. Department of Human Resources, 273 F.3d 844, 851-852 (9th Cir. 2001); Lopez v. Police Dep't, 247 F.3d 26, 28-29 (1st Cir. 2001).

(a)  11th Amendment immunity cannot be constructively waived. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 678 (1999) (court will find "waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction").

(b)  Some courts recognize a narrow "litigation exception" to this doctrine based on the state's conduct in a particular case. See Armstrong v. Davis, 275 F.3d 849, 877-878 (9th Cir. 2001) (state waived 11th Amendment immunity by failing to assert it); Hibbs, supra, 273 F.3d at 852 n.4 (finding the exception inapplicable under the facts presented); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 821 (9th Cir. 2001); Varela-Fernandez v. Burgos, 81 F. Supp.2d 297, 300-301 (D.P.R. 1999). See also Marisol A. v. Giuliani, 157 F. Supp.2d 303, 314 (S.D. N.Y. 2001) (state may waive 11th Amendment immunity by entering into a settlement agreement in which it unequivocally agrees to subject itself to federal court jurisdiction). But cf. Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 467-468 (1945) (suggesting that state Attorneys General may not always have the authority to waive 11th Amendment immunity); Lapides v. Bd. of Regents, 251 F.3d 1372 (11th Cir.) (state's removal of a claim to federal court does not waive 11th Amendment immunity), cert granted, 122 S. Ct. 456 (2001).

(2)  Immunity may be waived by state statute. E.g., Chapter 159, 2001 Minnesota Session Laws.

(3)  Immunity may also be waived by accepting federal funds conditioned on such a waiver. See §§ 2(a)(iii)(2)(b) and 7(c)(iii)(2) below.

(4)  Note that while some courts have held that 11th Amendment immunity may be waived if not timely asserted, Armstrong v. Davis, 275 F.3d 849, 877-878 (9th Cir. 2001), others have held that it may be raised for the first time on appeal, Shaboon v. Duncan, 252 F.3d 722, 737 n.9 (5th Cir. 2001); Lapides, supra, 251 F.3d at 1378 ("may be asserted at any point"), may be raised by the court sua sponte, Lapides, supra, 251 F.3d at 1378, and may be the subject of interlocutory appeals, Shaboon, supra, 252 F.3d at 729.

ii.  Some courts have held that the 11th Amendment does not bar a damage claim against a state, even in absence of a waiver of immunity, when:

(1)  The federal government will ultimately reimburse all or part of a money judgment against the state. Compare Conrad v. Perales, 92 F. Supp.2d 175, 180 (W.D. N.Y. 2000).

(2)  The entity invoking the immunity is sued only in its representative capacity. Compare State of California v. Campbell, 138 F.3d 784, 787 (9th Cir. 1998) (suit did not seek to recover assets of the state, but only named the entity in question in its capacity as a receiver of the assets of others).

iii.  11th Amendment immunity from claims under particular statutes

(1)  ADA claims

(a)  Title I - damages unavailable, Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), unless the state has waived its 11th Amendment immunity.

(b)  Title II

(i)  The Supreme Court refused to decide the issue. Garrett, supra, 531 U.S. at 360 n.1.

(ii)  The lower courts are divided

1)  After Garrett, most courts considering the issue have held that Title II cannot abrogate 11th Amendment immunity. See, e.g., Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Association for Disabled Americans, Inc. v. Florida International University, 178 F. Supp.2d 1291, 1293-1294 (S.D. Fla. 2001) (collecting similar cases); Badillo-Santiago v. Andreu-Garcia, 167 F. Supp.2d 194 (D.P.R. 2001); Lieberman v. Delaware, 2001 WL 1000936 (D.Del. Aug 30, 2001); Doe v. Div. of Youth and Family Serv., 148 F. Supp.2d 462, 487-88 (D.N.J. 2001). See also Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir.1999) (en banc), decided pre-Garrett.

2)  At least one circuit continues to hold that states are not immune. Hason v. Medical Bd. of California, 279 F.3d 1167, 1170-1171 (9th Cir. 2002). See also Project Life, Inc. v. Glendening, 139 F. Supp.2d 703, 707 n.5 (D.Md. 2001).

3)  The Second Circuit has held that, while Title II as a whole failed to validly abrogate 11th Amendment immunity, suits for money damages under Title II can be maintained against a state if the plaintiff can establish that the Title II violation was motivated by discriminatory animus or ill will. Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001). Compare Bowers v. National Collegiate Athletic Ass'n, 171 F. Supp.2d 389, 407-408 (D.N.J. 2001), appeal pending (reading Title II "to call upon Congress' § 5 power only insofar as it makes available damages for intentional discrimination. In all other respects, Title II is simply regulation under the Commerce Clause"; note, too, that the court's view of intent does not appear to require ill will); Doe v. Division of Youth and Family Services, 148 F. Supp.2d 462, 487 (D.N.J. 2001) (courts are "constrained to formulate constitutional rules only to the extent necessary to resolve the issues," so the holding that immunity was not abrogated for the claim presented "in no way calls into question" other provisions of Title II).

4)  The Sixth Circuit has held that an action is barred by the 11th Amendment insofar as the action relies on congressional enforcement of the Equal Protection Clause, but it is not barred insofar as it relies on congressional enforcement of the Due Process Clause. Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 811 (6th Cir. 2002) (en banc). Compare Frederick L. v. Dep't of Pub. Welfare, 157 F. Supp.2d 509 (E.D. Pa. 2001) (acknowledging substantive due process right to community-based services in certain cases, but finding Title II cannot abrogate 11th Amendment immunity).

(c)  ADA retaliation - the courts are divided on whether the states have 11th Amendment immunity from claims under the anti-retaliation provisions of Title V. Compare Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001) (states have immunity, at least in situations in which the retaliation claims are predicated on alleged violations of Title I), with Roberts v. Pennsylvania Dept. of Public Welfare, 2002 WL 253945 (E.D.Pa. Feb. 20, 2002) (no immunity).

(2)  § 504

(a)  Most lower courts since Garrett have held that Congress cannot abrogate the states' immunity from damages under the Rehabilitation Act. See, e.g., Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 113 (2d Cir.2001); Garrett v. University of Alabama at Birmingham Bd. of Trustees, 276 F.3d 1227, 1228-1229 (11th Cir. 2001) (on remand); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000).

(b)  But most lower courts have also found that under Congress' Spending Clause authority, the states validly waive their 11th Amendment immunity from § 504 claims by accepting federal funds conditioned on such a waiver.

(i)  Finding such a waiver of immunity: Carten v. Kent State University, 282 F.3d 391, 398 (6th Cir. 2002); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 819-821 (9th Cir. 2001) (and cases cited); Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000, en banc), cert. denied sub nom Arkansas Dept. of Educ. v. Jim C., 121 S. Ct. 2591 (2001); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000); August v. Mitchell, 2002 WL 188406 (E.D. La. Feb 01, 2002); Johnson v. State of Louisiana, 2002 WL 83645, at *5 (E.D. La. Jan 18, 2002); Bowers v. National Collegiate Athletic Ass'n, 171 F. Supp.2d 389, 408 (D.N.J. 2001), appeal pending (rejecting Garcia argument); Frederick L. v. Dep't of Pub. Welfare, 157 F. Supp.2d 509, 523 (E.D. Pa. 2001); Lieberman v. Delaware, 2001 WL 1000936, at *5-6 (D.Del. Aug. 30, 2001). See also Kvorjak v. Maine, 259 F.3d 48, 50 n.1 (1st Cir. 2001) (stating that employment claim could proceed under § 504 after Garrett, though without analysis); Maull v. Division of State Police, 141 F. Supp.2d 463, 474 (D.Del. 2001) (relying in part on Jim C., supra). Compare Sandoval v. Hagan, 197 F.3d 484, 493 (11th Cir.1999) (describing Rehabilitation Act's language as a "clear" waiver of state sovereign immunity in exchange for federal funds), overruled on other grounds, Alexander v. Sandoval, 531 U.S. 1049 (2001). Compare Garrett, supra, 276 F.3d at 1228-1229 (remanded for consideration of the issue); Reickenbacker, supra, 274 F.3d at 984 (issue not preserved).

(ii)  Finding no waiver: Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 113-115 (2d Cir.2001) (no knowing waiver because at the time the state accepted funds [pre-Seminole decision in 1995], Title II was reasonably understood to abrogate state's sovereign immunity under Commerce Clause authority, so a state accepting federal funds conditioned on a waiver of immunity from § 504 claims, which proscribed the same conduct, could not have understood that it was actually giving up anything).

(3)  § 1983 - states have 11th Amendment immunity. Quern v. Jordan, 440 U.S. 332, 338 et seq. (1979). (For more on § 1983, see § 5 below.)

(4)  FMLA - undecided. Hibbs v. Department of Human Resources, 273 F.3d 844, 850-851 (9th Cir. 2001) (collecting authorities, and creating a split in the circuits by holding that one part of the FMLA was a valid exercise of Congress' 14th Amendment power).

(5)  Under any state law

(a)  In federal court - you cannot sue the state under state law in federal court unless the state waives immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); Reyes v. Sazan, 168 F.3d 158, 162 (5th Cir. 1999).

(b)  In state court - there is no 11th Amendment bar, but the claim is governed by state "sovereign immunity" law.

iv.  Note, too, that many courts have held that damages under Title II and § 504 are only recoverable for intentional discrimination. See, e.g., Bowers v. National Collegiate Athletic Ass'n, 171 F. Supp.2d 389, 405-406 (D.N.J. 2001), appeal pending.

b.  Equitable relief against the states

i.  The Eleventh Amendment on its face applies equally to suits for damages and equitable relief. Carten v. Kent State University, 282 F.3d 391, 397 (6th Cir. 2002) (11th Amendment bars claim for injunctive relief against KSU); Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995) (suit against the state is barred by the 11th Amendment regardless of whether the relief sought is legal or equitable).

ii.  If you are suing the state, a state agency, or an "arm of the state," and you are seeking prospective injunctive relief, you cannot do it directly, and must instead name a state official in his or her official capacity in order to proceed under Ex parte Young. See § 3(a)(iii) below.

c.  Suing states in state court for violation of federal laws

i.  The Supreme Court has held that reference to the states' immunity from suit as "Eleventh Amendment immunity" is "convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment." Alden v. Maine, 527 U.S. 706, 713 (1999). Although by its terms the 11th Amendment does not apply to actions in state courts, id. at 735-736, the Supreme Court has held that the states' "constitutional immunity from suit is not limited to the text of the Amendment," id. at 736, and the states "retain immunity from private suit in their own courts . . . [that is] beyond the congressional power to abrogate by Article I legislation." Id. at 754.

ii.  The limits on this sovereign immunity include:

(1)  The "good faith" of the states, that they will not refuse to honor "obligations imposed by the Constitution and by federal statutes that comport with the constitutional design." Id. at 755.

(2)  Claims for which the states have consented to suit. Id. at 755.

(3)  Claims against states by other states or the federal government. Id. at 755.

(4)  Suits in which immunity is abrogated pursuant to Congress' 14th Amendment authority. Id. at 756.

(5)  Suits against local government entities. Id. at 756. See § 4 below.

(6)  Ex parte Young claims. Id. at 756-757. See § 3(a)(iii)(1) below.

(7)  Individual capacity claims against state officials. Id. at 757. See § 3(b)(i) below.

(8)Possibly, situations in which states manipulate their immunity in a systematic fashion to discriminate against federal causes of action. Compare Alden, supra, 527 U.S. at 758. See also § 8(b) below.

3.  Suing a state official

a.  If you are suing a state official in his or her official capacity:

i.  For damages - unavailable. Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989).

ii.  For equitable relief generally - unavailable. See § 2(b)(i) above.

iii.  For prospective injunctive relief

1.  Federal cause of action

(a)  11th Amendment is not a bar to an action under Ex parte Young. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (explicitly recognizing Ex parte Young actions for prospective injunctive relief against state officials under Title I of the ADA). For cases allowing Ex parte Young actions to enforce the ADA, see, e.g., Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001); Daigle v. Louisiana Dept. of Social Services, 2002 WL 126647 (E.D. La. Jan. 31, 2002); Parker v. Michigan Department of Corrections, 2001 WL 1736637, at*5 (W.D.Mich. Nov. 9, 2001). For more examples, see the NAPAS docket at http://www.protectionandadvocacy.com/sept01.htm, listing community integration cases. See also the cases cited in § 7(d) below.

(b)  Some courts have identified four requirements for a valid Ex parte Young claim. See, e.g., Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975-976 (10th Cir. 2001). See also Wright & Miller, Federal Practice & Procedure § 3524 at nn. 70.9-70.10 (2001 Supp.).

(i)  The plaintiffs must sue state officials, rather than the state itself. See, e.g., Reickenbacker v. Foster, 274 F.3d 974, 976 n.9 (5th Cir. 2001) (amended complaint named no state official, and was not entitled to proceed under Ex parte Young); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975-976 (10th Cir. 2001); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 821 n.6 (9th Cir. 2001); Association for Disabled Americans, Inc. v. Florida International University, 178 F. Supp.2d 1291, 1295 (S.D. Fla. 2001); U.S. v. Mississippi Dept. of Public Safety, 159 F. Supp.2d 374, 378 (S.D.Miss. 2001); Diaz Reyes v. Police Department, 153 F. Supp.2d 74 (D.P.R. 2001); American Soc. of Consultant Pharmacists v. Patla, 138 F. Supp.2d 1062, 1070-1071 (N.D. Ill. 2001). Compare Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).

(ii)  The plaintiffs must allege a non-frivolous violation of federal law.

(iii)  The plaintiffs must seek prospective equitable relief, rather than retroactive monetary relief from the state treasury. For example, claims for reinstatement are prospective in nature. Carten, supra, 282 F.3d at 396 (rejecting defense argument that the plaintiff was seeking a retrospective reversal of a completed state decision to expel him).

(iv)  The suit must not implicate the state's "special sovereignty interests." For more on this theory, see § 7(d)(iii) below.

(c)  The Ex parte Young distinction does not allow all equitable relief, but is limited to prospective injunctive relief. Compare Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995) (suit against the state is barred by the 11th Amendment regardless of whether the relief sought is legal or equitable).

(i)  It cannot be used to obtain declaratory relief for a past violation of federal law. Green v. Mansour, 474 U.S. 64 (1985); Doe v. Division of Youth and Family Services, 148 F. Supp.2d 462, 484 (D.N.J. 2001); Robertson v. Huffman, 144 F. Supp.2d 447, 452-453 (W.D. N.C. 2001). Compare Wright & Miller, Federal Practice & Procedure § 3524 at n. 61.1 (2001 Supp.).

(ii)  There must also be an ongoing violation of federal law. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).

(d)  A prospective injunction is permitted even though a substantial state expenditures may be required to correct the violation. Milliken v. Bradley, 433 U.S. 267 (1977); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 977-978 (10th Cir. 2001); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001); American Soc. of Consultant Pharmacists v. Patla, 138 F. Supp.2d 1062, 1069-1070 (N.D. Ill. 2001).

(e)  Similarly, there is no 11th Amendment bar to a claim for attorneys fees in an Ex parte Young suit. Missouri v. Jenkins, 491 U.S. 274, 279 (1989) ("an award of attorney's fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment").

iv.  For state law claims In federal court

(a)  State can claim 11th Amendment immunity. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 109 (1984).

(b)  There is no exception to this immunity just because suit seeks only prospective injunctive relief (i.e., no Ex parte Young exception). Pennhurst, supra, 465 U.S. at 109; Papasan v. Allain, 478 U.S. 265, 277 (1986); Lewis v. New Mexico Dept. of Health, 94 F. Supp.2d 1217, 1229 (D.Colo. 2000), aff'd on other grounds, 261 F.3d 970 (10th Cir. 2001).

(c)  There may be some other, narrower exceptions, however:

(i)  Federal courts may have jurisdiction to prospectively require state officials to obey state law if federal regulations make compliance with the state law a federal duty. See discussion and authorities in Doe, 1-13 v. Bush, 261 F.3d 1037, 1055 et seq. (11th Cir. 2001). See also Cox v. City of Dallas, 256 F.3d 281, 308 (5th Cir. 2001).

(ii)  A consent decree normally does not confer jurisdiction on a federal court to enforce state law claims, but it can validly include protections found in a state statute as a means of correcting violations of federal rights, and a subsequent motion to enforce such a decree is not a "federal suit against state officials on the basis of state law." Komyatti v. Bayh, 96 F.3d 955, 960-961 (7th Cir. 1996).

(iii)  11th Amendment immunity does not prevent an action in federal court against a state official for ultra vires actions beyond the scope of statutory authority, or pursuant to authority deemed to be unconstitutional. Pennhurst, supra, 465 U.S. at 101-102, n. 11; Scham v. District Courts, 967 F. Supp 230, 232-233 (S.D.Tex. 1997).

(1)  In this context, ultra vires actions are those "without any authority whatever;" claim rests on the officer's lack of delegated power. Pennhurst, supra, 465 U.S. at 101-102, n. 11.

(2)  The test has been stated as whether there was any "colorable basis for the exercise of authority by state officials." A claim of error in the exercise of that power is insufficient. Id.

2.  In state court - depends on state law

b.  If you are suing a state official in his or her individual capacity (i.e., getting money out of official's own pocket):

i.  11th Amendment does not bar suit against state officials in their individual capacities, even if arising from their official acts, Hafer v. Melo, 502 U.S. 21, 30-31 (1991), unless the claim will "run to the state treasury" under state law. Reyes v. Sazan, 168 F.3d 158, 162-163 (5th Cir. 1999).

(1)  State law that bars individual liability and instead imputes it to the state means that the claim "runs to the state," id., but

(2)  Several courts have held that indemnification statutes do not mean the judgment "runs to the state," and therefore pose no 11th Amendment bar against individual claims. Id.; Cornforth v. University of Oklahoma Bd. of Regents, 263 F.3d 1129, 1133 (10th Cir. 2001); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940, 945 (7th Cir. 1986). See also Jackson v. Georgia Dept. of Transp., 16 F.3d 1573 (11th Cir. 1994) (existence of state's liability insurance trust fund, voluntarily established to protect its employees against personal liability for damages, does not make state real party in interest for purposes of 11th Amendment immunity). Compare Wright & Miller, Federal Practice & Procedure § 3524 at n. 48.2 (2001 Supp.).

(3)  Voluntary payments by state to enable non-state agency to meet shortfall caused by adverse judgment do not trigger 11th Amendment immunity. Christy v. Pennsylvania Turnpike Com'n, 54 F.3d 1140, 1147 (3d Cir. 1995).

ii.  It does not matter whether the individual capacity suit is to enforce federal or state law. Sutta v. Acalanes Union High School Dist., 2001 WL 1720616, *3 (N.D.Cal. Oct. 3, 2001) (officers sued in their individual capacity for violations of state law can be liable for monetary damages).

iii.  But the cause of action must allow for individual liability.

(1)  Statutes allowing for individual liability: § 1983, Hafer v. Melo, 502 U.S. 21 (1991).

(2)  Statutes generally held not to allow such liability: ADA Title I - Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999); ADA Title II - Navedo v. Maloney, 172 F. Supp.2d 276, 288-289 (D.Mass. 2001) (collecting authorities); Key v. Grayson, 163 F. Supp.2d 697 (E.D. Mich. 2001) (similar). Rehabilitation Act employment claims - Hiler v. Brown, 177 F.3d 542, 546-547 (6th Cir. 1999); Castro Ortiz v. Fajardo, 133 F. Supp.2d 143, 150-151 (D.P.R. 2001) (collecting cases).

(3)  Statutes with less clear authority: FMLA - compare Hibbs v. Department of Human Resources, 273 F.3d 844, 871-872 (9th Cir. 2001) (some supervisors can be sued as employers), with Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999) (no individual liability of public officials). § 504 non-employment cases - compare Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir.1994) (holding that qualified immunity is a defense, suggesting the availability of individual capacity claims; compare § 3(b)(iv) below), with Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509, 531 (E.D. Pa. 2001) (not reaching the issue but citing cases finding no individual liability).

iv.  Individuals are also entitled to claim qualified immunity

(1)  What it is: "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Crawford-El v. Britton, 523 U.S. 574, 588 (1998).

(2)  Who can claim it:

(a)  This defense is not applicable to claims against a governmental entity itself. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 166 (1993).

(b)  This defense is not applicable to claims against individuals in their official capacity. Kentucky v. Graham, 473 U.S. 159, 166-167 (1985).

(c)  Not applicable to suits (or portions of suits) for injunctive relief. Valley v. Rapides Parish School Board, 118 F.3d 1047, 1051 n.1 (5th Cir. 1997); Lugo v. Alvarado, 819 F.2d 5, 7 (1st Cir. 1987); Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993) (because such claims are necessarily official capacity suits); Rouse v. Plantier, 997 F. Supp. 575 (D.N.J. 1998).

(d)  This defense is only available to claims against individuals in their individual capacity. Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir. 1980).

4.  Suing a local government entity or official

a.  Generally, there is no 11th Amendment immunity. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001).

b.  Note that some courts have granted 11th Amendment immunity to local governments when their actions were compelled by state law. See Wright & Miller, Federal Practice & Procedure § 3524 at nn. 251-253 (2001 Supp.).

c.  Note that other kinds of immunity may apply. For a case discussing the effect of judicial immunity on ADA and § 504 claims, for example, see Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001).

d.  Many courts have held that damages under Title II and §504 are only recoverable for intentional discrimination. See, e.g., Bowers v. National Collegiate Athletic Ass'n, 171 F. Supp.2d 389, 405-406 (D.N.J. 2001), appeal pending. The meaning of intent in this context is fluid. See Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 112, 115 (2d Cir.2001).

e.  Note, too, that there are certain attacks on Congressional authority that could impact claims against local government entities. See § 7(c)(ii) and (iii) below.

5.  § 1983 claims generally - 42 U.S.C. § 1983 is not a cause of action, but a procedural method to enforce:

a.  Federal constitution

b.  Certain federal statutory rights

i.  § 1983 actions may sometimes be based on a violation of a federal statute, Maine v. Thiboutot, 448 U.S. 1 (1980), if the statute creates a federal right. Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 1359 (1997) (child support obligations under Title IV-D of Social Security Act statute did not create enforceable right under § 1983).

ii.  The Supreme Court discussed the standards for determining which federal statutes are enforceable under § 1983 in Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987), Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Suter v. Artist M., 503 U.S. 347, 355-356 (1992), and Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353 (1997). See Messier v. Southbury Training School, 916 F. Supp. 133, 142-146 (D.Conn. 1999).

iii.  The resulting Wright/Wilder/Blessing test, set out in Blessing, supra, 520 U.S. at 340-341, states:

(1)  There is a rebuttable presumption that a statute is enforceable under § 1983 if the Plaintiff can show that:

(a)  Congress intended the provision to benefit the plaintiff;

(b)  The right is not too vague and amorphous to enforce;

(c)  The provision unambiguously imposes a binding obligation on the states.

(2)  The statute is enforceable unless the Defendant can prove that Congress has foreclosed a § 1983 remedy.

iv.  Congress may clarify that a particular statute is not actionable under § 1983, either by express words, or by providing a comprehensive alternative enforcement scheme. Livadas v. Bradshaw, 512 U.S. 107 (1994).

v.  Particular statutes:

(1)  IDEA - The case law is split. Padilla v. School Dist. No. 1 in City and County of Denver, Colo., 233 F.3d 1268, 1272-1274 (10th Cir. 2000) (rejecting the use of §1983 to enforce IDEA, but collecting authorities on both sides); Goleta Union Elementary School Dist. v. Ordway, 166 F. Supp.2d 1287, 1293-1295 (C.D.Cal. 2001) (also collecting authorities and reaching a contrary result). See also "A Diller, a Dollar: Section 1983 Damage Claims in Special Education Lawsuits," 36 Ga. L. Rev. 465, 496-497 (2002).

(2)  Medicaid - for an exhaustive summary of § 1983 cases involving the Medicaid Act, see Jane Perkins, "42 U.S.C. §  983 and Enforcement of the Medicaid Act," (Updated March 25, 2002). For this resource online, see http://www.healthlaw.org/pubs/1983docket.html.

(3)  Rehabilitation Act:

(a)  Title I (covering vocational rehabilitation programs): see Mallett v. Wisconsin Division of Vocational Rehabilitation, 130 F.3d 1245, 1251-1257 (7th Cir. 1997) (holding enforceable).

(b)  § 501: generally not enforceable under § 1983 because of its detailed remedial scheme. See, e.g., Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1530-1531 (11th Cir. 1997).

(c)  § 504: The cases are divided. Compare W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (§ 504 enforceable under § 1983 in the special education context); Frederick L. v. Dep't of Pub. Welfare, 157 F. Supp.2d 509, 532-534 (E.D.Pa. 2001) (§ 504 community integration claim enforceable under § 1983), with cases finding § 504 not enforceable, like Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094, 1145 (S.D.N.Y. 1997), aff'd on other grounds, 156 F.3d 321 (2d Cir. 1998); Silk v. City of Chicago, 1996 WL 312074, at *18-19 (N.D.Ill. 1996) (collecting cases). See also Hartley, "Enforcing Federal Civil Rights Against Public Entities After Garrett," 28 J. Coll. & Univ. L. 41, 77 n.196 (2001) (collecting cases). The question may be less important if the same relief is available directly under § 504. (See § 2(a)(iii)(2) above.) Some differences may be with regard to the availability of individual capacity claims and punitive damages.

(4)  ADA:

(a)  Title I employment claims: generally not enforceable because of its detailed remedial scheme. E.g., Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1530-1531 (11th Cir. 1997); Krocka v. Bransfield, 969 F. Supp. 1073, 1090 (E.D. Ill. 1997).

(b)  Title II: the cases are divided. Holding not enforceable: Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094, 1145 (S.D.N.Y. 1997), aff'd on other grounds, 156 F.3d 321 (2d Cir. 1998); Silk v. City of Chicago, 1996 WL 312074, at *18-19 (N.D. Ill. 1996) (collecting cases). Holding enforceable: Frederick L. v. Dep't of Pub. Welfare, 157 F. Supp.2d 509, 532-534 (E.D.Pa. 2001) (Title II community integration claim enforceable under § 1983); Hanson v. Sangamon County Sheriff's Department, 991 F. Supp. 1059 (C.D. Ill. 1998) (detainee with deafness permitted to proceed with effective communication claim, without discussion). See also Hartley, "Enforcing Federal Civil Rights Against Public Entities After Garrett," 28 J. Coll. & Univ. L. 41, 76 n.195 (2001) (collecting cases).

(5)  FMLA: the cases are divided. Compare Knussman v. State, 16 F. Supp.2d 601 (D.Md. 1998) (holding actionable under § 1983), and O'Hara v. Mt. Vernon Board of Education, 16 F. Supp.2d 868 (S.D. Ohio 1998) (holding not actionable).

(6)  FERPA - pending in the Supreme Court. Doe v. Gonzaga University, 24 P.3d 390 (Wash. 2001), cert. granted, 122 S. Ct. 865 (Jan. 11, 2002).

c.  Although state statutes generally cannot form the basis of a § 1983 action, state statutes may define what is a constitutionally protected property interest, Systems Contractors Corporation v. Orleans Parish School Board, 148 F.3d 571, 574 n.16 (5th Cir. 1998); Samuel v. Holmes, 138 F.3d 173, 176 n.14 (5th Cir. 1998), or liberty interest, Sandin v. Conner, 515 U.S. 472 (1995) (state-created liberty interest exists when state law or procedures create mandatory objective criteria, the violation of which imposes "atypical and significant hardship"); Felce v. Fiedler, 974 F.2d 1484, 1489 (7th Cir. 1992) (state-created liberty interest in avoiding administration of anti-psychotic drugs); Clarkson v. Coughlin, 898 F. Supp. 1019, 1040 (S.D.N.Y. 1995) (state-created liberty interest in having sign language interpreters for deaf inmates at parole-related hearings). See also Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997), cert. denied sub nom Guerra v. Carlo, 523 U.S. 1036 (1998).