563 U.S. 247


certiorari to the united states court of appeals for the fourth circuit

No. 09529.Argued December 1, 2010Decided April 19, 2011

Together, the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (DD Act) and the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI Act) offer States federal money to improve, inter alia, medical care for persons with developmental disabilities or mental illness. As a condition of funding, a State must establish a protection and advocacy (P&A) system to protect and advocate [those individuals] rights. 42 U.S.C. 15043(a)(1). A participating State may appoint either a state agency or a private nonprofit entity as its P&A system, but if a state agency it must have authority to litigate and freedom from the control of other state agencies or officers. Virginia has appointed an independent state agency, petitioner Virginia Office for Protection and Advocacy (VOPA), authorizing it to litigate to secure disabled individuals rights, free of executive-branch oversight; to operate independently of Virginias attorney general; and to employ its own lawyers to sue on its behalf.

While investigating patient deaths and injuries at state mental hospitals, VOPA asked respondentsstate officials in charge of those hospitalsto produce relevant patient records. Respondents refused, asserting that a state-law privilege shielded the records from disclosure. VOPA then filed suit in Federal District Court, seeking a declaration that respondents refusal to produce the records violated the DD and PAIMI Acts and an injunction requiring respondents to produce the records and refrain in the future from interfering with VOPAs right of access. Respondents moved to dismiss on the ground that they are immune from suit under the Eleventh Amendment , but the court held that the suit was permitted by the doctrine of Ex parte Young , 209 U.S. 123, which normally allows federal courts to award prospective relief against state officials for violations of federal law. The Fourth Circuit reversed, finding that Ex parte Young did not apply because the suit was brought by a state agency.

Held:Ex parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State. Pp.413.

(a)Absent a waiver of sovereign immunity by a State itself or a valid abrogation by Congress, federal courts may not entertain a private persons suit against a State. Pp.45.

(b)The doctrine of Ex parte Young, which establishes an important limitation on the sovereign-immunity principle, is accepted as necessary to permit the federal courts to vindicate federal rights. Pennhurst State School and Hospital v. Halderman , 465 U.S. 89. It rests on the premise that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. It does not apply when the state is the party in interest. Id., at 101. Pp.56.

(c)Entertaining VOPAs action is consistent with precedent and does not offend the distinctive interests protected by sovereign immunity. Pp.613.

(1) Verizon Md. Inc. v. Public Serv. Commn of Md. , 535 U.S. 635, held that, in determining the Ex parte Young doctrines applicability, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Id. , at 645. VOPAs suit satisfies that inquiry. Respondents concede that the action would be proper were VOPA a private organization rather than a state agency. The general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought, Pennhurst , supra , at 107, not who is bringing the lawsuit. This Court applied that criterion in Idaho v. Coeur dAlene Tribe of Idaho , 521 U.S. 261, which held that an Indian Tribe could not invoke Ex parte Young to bring what was essentially a quiet title suit that would extinguish [Idahos] control over lands and waters long deemed an integral part of its territory. Id. , at 282. Respondents have advanced no argument that the relief sought here threatens a similar invasion of Virginias sovereignty. Pp.79.

(2)Respondents claim that a States dignity is diminished when a federal court adjudicates a dispute between its components. But a States stature is not diminished to any greater degree when its own agency sues to enforce its officers compliance with federal law than when a private person does so. Moreover, VOPAs power to sue state officials is a consequence of Virginias own decision to establish a public P&A system. Not every offense to a States dignity constitutes a denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haled into court without its consent; that does not occur just because a suit happens to be brought by another state agency. Pp.911.

(3)The apparent novelty of this suit is not likely a consequence of past constitutional doubts. In order to invoke the Ex parte Young exception, a state agency needs both a federal right that it possesses against its parent State and authority to sue state officials to enforce that right, free from any internal state-government veto; such conditions rarely coincide. In any event, the principles undergirding the Ex parte Young doctrine support its extension to actions of this kind. Pp.1213.

568 F.3d 110, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, JJ., joined. Kennedy, J., filed a concurring opinion, in which Thomas, J., joined. Roberts, C.J., filed a dissenting opinion, in which Alito, J., joined. Kagan, J., took no part in the consideration or decision of the case.


on writ of certiorari to the united states court of appeals for the fourth circuit

[April 19, 2011]

Justice Kennedy , with whom Justice Thomas joins, concurring.

Ex parte Young , 209 U.S. 123 (1908) , recognized a narrow limitation on state sovereign immunity, permitting railroad stockholders to enjoin enforcement of unconsti-tutional rate regulations. That negative injunction was nothing more than the pre-emptive assertion in equity of a defense that would otherwise have been available in the States enforcement proceedings at law. Id. , at 165166; see also Harrison, Ex Parte Young , 60 Stan. L.Rev. 989, 997999 (2008).

The Court has expanded the Young exception far beyond its original office in order to vindicate the federal interest in assuring the supremacy of [federal] law, Green v. Mansour , 474 U.S. 64, 68 (1985) , but not without careful attention in each case to the sovereign interests of the State. See Verizon Md. Inc. v. Public Serv. Commn of Md. , 535 U.S. 635, 649 (2002) ( Kennedy , J., concurring). In Edelman v. Jordan , 415 U.S. 651 (1974) , for example, the Court applied the exception to an affirmative prospective order but not to equitable restitution, for the latter was too similar to an award of damages against the State. Id., at 668; see Pennhurst State School and Hospital v. Halderman , 465 U.S. 89, 103 (1984) (Under the theory of Young , such a suit [for restitution] would not be one against the State since the federal-law allegation would strip the state officer of his official authority. Nevertheless, retroactive relief was barred by the Eleventh Amendment ). And Pennhurst declined to extend Young to suits alleging a state-law violation, for without the need to ensure the supremacy of federal law there was no justification for restricting state sovereignty. 465 U.S., at 105106.

The straightforward inquiry of Verizon Md. derives from Edelman and Pennhurst , both of which defined important limits on Young in order to respect state sovereignty while still adhering to principles necessary to implement the Supremacy Clause. As a result, Verizon Md. incorporates the very balancing it might at first seem to reject. Verizon Md. itself was an easy case, for it involved the same kind of preenforcement assertion of a defense that was at issue in Young . But when Young s application is explored in novel contexts, as in Idaho v. Coeur dAlene Tribe of Idaho , 521 U.S. 261 (1997) , and also in this case, the inquiry proves more complex, Verizon Md., supra, at 648 ( Kennedy , J., concurring).

In this case, in my view, the Virginia Office for Protection and Advocacy may rely on Young , despite the somewhat striking novelty of permitting a state agency to sue officials of the same State in federal court. In the posture of the case as it comes before the Court, it must be assumed that VOPA has a federal right to the records it seeks, and so the extension of Young would vindicate the Supremacy Clause. To be balanced against this important interest is the need to preserve the dignity and respect afforded a State, which the immunity is designed to protect. Coeur dAlene , supra , at 268. Permitting a state agency like VOPA to sue officials of the same State does implicate the States important sovereign interest in using its own courts to control the distribution of power among its own agents. But the affront to the States dignity is diminished to some extent when it is noted that if the State had elected the alternate course of designating a private protection and advocacy system it then would have avoided any risk of internal conflict while still participating in the federal program. The availability of that alternate course does not, in my view, weigh much in favor of the validity of the underlying federal scheme, but the only question here is the reach of the Young exception.

Virginias concern that the holding here upsets the federal balance is further mitigated by the various protections built into the structure of federal litigation to ensure that state officials do not too often call upon the federal courts to resolve their intramural disputes.

First, and most important, state law must authorize an agency or official to sue another arm of the State. If States do not wish to see their internal conflicts aired in federal court, they need not empower their officers or agencies to sue one another in a federal forum. And if state officers are not by state law empowered to sue, they may invoke federal jurisdiction only in their personal capacities.

Second, to the extent there is some doubt under state law as to an officers or agencys power to sue, or any other state-law issue that may be dispositive, federal courts should abstain under Railroad Commn of Tex. v. Pullman Co. , 312 U.S. 496 (1941) . Pullman recognizes the importance of state sovereignty by limiting federal judicial intervention in state affairs to cases where intervention is necessary. If an open question of state-law would resolve a dispute, then federal courts may wait for the resolution of the state-law issue before adjudicating the merits. Likewise, certification of questions of state law to the state courts may pretermit an otherwise sensitive federal controversy. Lehman Brothers v. Schein , 416 U.S. 386, 391 (1974) (Certification helps build a cooperative judicial federalism).

Finally, federal law does not often create rights for state officials or agencies to assert against other arms of the State. True, officials may assert that their personal federal rights are violated by unlawful state action, for example where the State engages in discriminatory employment practices. But the statutory framework in the case now before the Court is unusual in that it vests a state agency itself with federal rights against the State. Statutes tend to protect the rights of individuals, not officers or agencies, and the Constitutions rights-creating Clauses protect persons rather than officers. Because the Young exception is available only to those who assert federal violations, the paucity of federal rights vested in government officials makes the scope of the holding here a narrow one.

All this is simply to underscore that the program at issue may present constitutional questions but that the parties do not raise them in this litigation. Virginia does not argue, for example, that Congress exceeded its spending power under Article I, 8 by forcing a state that wishes to designate a public agency as its advocacy system to allow intramural suits like the instant one or by requiring that the agency be structured as Congress directs. E.g. , 42 U.S.C. 15043(a)(2)(G) (system must be independent of any agency that provides treatment, services, or habilitation to individuals with developmental disabilities); 15044(a)(2) ([N]ot more than 1/3 of the members of the governing board may be appointed by the chief executive officer of the State). Young a court-made doctrine based on convenience, fiction, or bothneither implicates nor subsumes these more fundamental concerns regarding the excessive exercise of federal power. The Court should be most cautious before deciding cases that might later lead to a general principle that the National Government can condition receipt of funds on the States agreement to make far-reaching changes with respect to its governmental structure or its basic policies of governance in matters within its special competence. Assuming, as the Court must, that the statutes here are constitutional, the narrow question is whether VOPA may rely on Young to avoid the sovereign immunity bar.

One might doubt whether the constitutional question may be so severed from the Young analysis. The Court wields Young in the name of the Supremacy Clause only to vindicate important federal rights. Perhaps this Court should not extend the fiction in the name of claims that may rest on unconstitutional foundations. This concern is misplaced. The canon of constitutional avoidance directs courts to prefer the interpretation of a statute that preserves its validity, but the specter of a statutes unconstitutionality cannot be permitted to distort the antecedent question of jurisdiction. Courts interpret and evaluate a statute only after confirming their authority to adjudicate the case before them. To decline to adjudicate a federal right for fear of its potential unconstitutionality is in effect to invalidate the right in the quest to save it. The Court should not permit the commission of acts that violate a federal right on the mere suspicion that Congress acted beyond its authority. Because the suit must be assumed to vindicate the Supremacy Clause and poses no serious affront to state sovereignty in light of the options available to the State under the program, it may proceed.

With these observations, I join the Courts opinion.


on writ of certiorari to the united states court of appeals for the fourth circuit

[April 19, 2011]

Chief Justice Roberts , with whom Justice Alito joins, dissenting.

Today the Court holds that a state agency may sue officials acting on behalf of the State in federal court. This has never happened before. In order to reach this unsettling result, the Court extends the fiction of Ex parte Young what we have called an empty formalismwell beyond the circumstances of that case. Because I cannot subscribe to such a substantial and novel expansion of what we have also called a narrow exception to a States sovereign immunity, I respectfully dissent.



The federal system established by our Constitution preserves the sovereign status of the States. Alden v. Maine , 527 U.S. 706, 714 (1999) . As confirmed by the Eleventh Amendment , [a]n integral component of that residuary and inviolable sovereignty is the States immunity from private suits. Federal Maritime Commn v. South Carolina Ports Authority , 535 U.S. 743, 751753 (2002) (internal quotation marks omitted); Hans v. Louisiana , 134 U.S. 1, 13 (1890) (It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent (quoting The Federalist No. 81 (A. Hamilton))). The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. Federal Maritime Commn , supra , at 760. Accordingly, any time a State is haled into federal court against its will, the dignity and respect afforded [that] State, which [sovereign] immunity is designed to protect, are placed in jeopardy. Idaho v. Coeur dAlene Tribe of Idaho , 521 U.S. 261, 268 (1997) . The immunity does not turn on whether relief will be awarded; [t]he Eleventh Amendment is concerned not only with the States ability to withstand suit, but with their privilege not to be sued. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147, n. 5 (1993) . See Federal Maritime Commn , supra , at 769 (the primary function of sovereign immunity is not to protect state treasuries, but to afford the States the dignity and respect due sovereign entities (citation omitted)).

Because of the key role state sovereign immunity plays in our federal system, the Court has recognized only a few exceptions to that immunity. The sole one relevant here is the narrow exception, Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 76 (1996) , established by our decision in Ex parte Young , 209 U.S. 123 (1908) . In Ex parte Young , the Court held that private litigants could seek an injunction in federal court against a state official, prohibiting him from enforcing a state law claimed to violate the Federal Constitution. See id. , at 159168. As we have often observed, Ex parte Young rests on the obvious fiction, Couer dAlene Tribe , supra , at 270, that such a suit is not really against the State, but rather against an individual who has been stripped of his official or representative character because of his unlawful conduct, Ex parte Young , supra , at 159160. 1

While we have consistently acknowledged the important role Ex parte Young plays in promot[ing] the vindication of federal rights, we have been cautious not to give that decision an expansive interpretation. Pennhurst State School and Hospital v. Halderman , 465 U.S. 89, 105, 102 (1984) . Indeed, the history of our Ex parte Young jurisprudence has largely been focused on ensuring that this narrow exception is narrowly construed, 465 U.S., at 114, n. 25. We have, for example, held that the fiction of Ex parte Young does not extend to suits where the plaintiff seeks retroactive relief, Edelman v. Jordan , 415 U.S. 651, 678 (1974) ; where the claimed violations are based on state law, Pennhurst , supra , at 106; where the federal law violation is no longer ongoing, Green v. Mansour , 474 U.S. 64, 71 (1985) ; where Congress has prescribed a detailed remedial scheme for the enforcement against a State of the claimed federal right, Seminole Tribe , supra , at 74; and where special sovereignty interests are implicated, Couer dAlene Tribe , supra , at 281.

We recently stated that when determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Verizon Md. Inc. v. Public Serv. Commn of Md. , 535 U.S. 635, 645 (2002) (internal quotation marks omitted). But not every plaintiff who complies with these prerequisites will be able to bring suit under Ex parte Young . Indeed, in Verizon itself the Court went beyond its so-called straightforward inquiry in considering whether Ex parte Young applied. After deciding the plaintiffs clearly satisfie[d] the straightforward inquiry, the Court went on to examine whether Congress had created a detailed remedial scheme like the one in Seminole Tribe . 535 U.S., at 645, 647648 (internal quotation marks omitted). Only after determining that Congress had not done so did the Court conclude that the suit could go forward under Ex parte Young .

If Verizon s formulation set forth the only requirements for bringing an action under Ex parte Young , two of our recent precedents were wrongly decided. In Seminole Tribe , the Court acknowledged that it had often found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law. 517 U.S., at 73 (internal quotation marks omitted). The Court held, however, that the situation presented there was sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine. Ibid . 2

In Couer dAlene Tribe , the Court recognized that an allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction. 521 U.S., at 281 (emphasis added). The Court held, however, that the action could not proceed under Ex parte Young because it implicated special sovereignty interestsin that case, the States property rights in certain submerged lands. 521 U.S., at 281283.

As we explained in Papasan v. Allain , 478 U.S. 265 (1986) , there are certain types of cases that formally meet the Young requirements of a state official acting inconsistently with federal law but that stretch that case too far and would upset the balance of federal and state interests that it embodies. Id. , at 277. This is one of those cases.

In refusing to extend Ex parte Young to claims that involve special sovereignty interests, the Court in Coeur dAlene Tribe warned against a rote application of the Ex parte Young fiction:

To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle that Eleventh Amendment immunity represents a real limitation on a federal courts federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading. Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction. 521 U.S., at 270.


It is undisputed that petitioners complaint alleges an ongoing violation of federal law by a state official and seeks only prospective relief. If this were a traditional Ex parte Young action, Seminole Tribe , supra , at 73, petitioner might very well be able to pursue its claims under that case. This, however, is anything but a traditional caseand petitioner is anything but a typical Ex parte Young plaintiff.

Unlike the plaintiffs in Ex parte Young and, for that matter, unlike any other plaintiff that has ever sought to invoke Ex parte Young before this Courtpetitioner is a state agency seeking to sue officials of the same State in federal court. The Court is troubled by this novelty, ante at 1213, but not enough. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. ___, ___ (2010) (slip op., at 25) (Perhaps the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent (internal quotation marks omitted)); cf. Alden , 527 U.S., at 743745; Printz v. United States , 521 U.S. 898, 905910, 918, 925 (1997) . This is especially true in light of the presumption we articulated more than 120 years ago in Hans v. Louisiana , that States are immune from suits that would have been anomalous and unheard of when the Constitution was adopted. Hans , 134 U.S., at 18; see also Alden , supra , at 727 (invoking presumption).

Accordingly, when determining whether to lift the bar of sovereign immunity, we have attribute[d] great significance to the absence of analogous suits at the time of the founding or for many years thereafter. Federal Maritime Commn , 535 U.S., at 755. This sort of suit was not only anomalous and unheard of at the time of the founding; it was anomalous and unheard of yesterday. The Hans presumption applies here with full force.

The Court speculates that these suits have not previously arisen because the necessary conditionsstate agencies pursuing a federal right free of internal state vetoare themselves novel. See ante , at 12; see also ante , at 34 ( Kennedy , J., concurring). Even if true, that simply highlights the fact that this case is not suitable for mere rote application of Ex parte Young .

In addition to its novel character, petitioners complaint conflicts directly with the principles of federalism that underlie the Eleventh Amendment . Pennhurst , 465 U.S., at 106. In Alden , we held that state sovereign immu- nity prohibited Congress from authorizing private suits against nonconsenting States in their own courts. 527 U.S., at 749. We explained that such power would permit one branch of state government, the States own courts, to coerce the other branches of the State and to turn the State against itself. Ibid .

Here the Court goes further: this suit features a state agency on one side, and state executive officials on the other. The objection in Alden was that the Federal Government could force the State to defend itself before itself. Here extending Young forces the State to defend itself against itself in federal court.

Both sides in this case exercise the sovereign power of the Commonwealth of Virginia. Petitioner claims the title of The Commonwealth of Virginia in its complaint, App. 10; respondents are state officials acting in an official capacity. Whatever the decision in the litigation, one thing is clear: The Commonwealth will win. And the Commonwealth will lose. Because of todays holding, a federal judge will resolve which part of the Commonwealth will prevail.

Virginia has not consented to such a suit in federal court; rather, petitioner has unilaterally determined that this intramural dispute should be resolved in that forum. This is precisely what sovereign immunity is supposed to guard against. See ante , at 10 (The specific indignity against which sovereign immunity protects is the insult to a State of being haled into court without its consent). That indignity is compounded when the State is haled into federal court so that a federal judge can decide an internal state dispute.

The Court is wrong to suggest that Virginia has no sovereign interest in determining where such disputes will be resolved. See ante , at 1011, and n. 6. It is one thing for a State to decide that its components may sue one another in its own courts (as Virginia did here); it is quite another thing for such a dispute to be resolved in federal court against the States wishes. For this reason, the Courts examples of other suits pitting state entities against one another are inapposite. In each of those hypotheticals, the State consented to having a particular forum resolve its internal conflict. That is not true here. 3

In sum, the special sovereignty interests implicated here make this case sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine. Seminole Tribe , 517 U.S., at 73. I would cling to reality and not extend the fiction of Ex parte Young to cover petitioners suit.


The Court offers several justifications for its expansion of Ex parte Young . None is persuasive.

The Court first contends that whether the Ex parte Young fiction should be applied turns only on the relief sought in a case. Ante , at 89 (internal quotation marks omitted). The Court is correct that several of our prior cases have focused on the nature of the relief requested. See, e.g. , Edelman , 415 U.S., at 664671. That may well be because the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. Id. , at 667. But the Court is wrong to draw a negative implication from those cases and categorically conclude that there can be no other basis for determining whether to extend Ex parte Young s fiction.

The thrust of the Courts argument appears to be that, because the relief sought here is no different from that which could be sought in a suit by a private protection and advocacy system, the doctrine of Ex parte Young should also apply to a suit brought by a state system. Ante , at 79. But private entities are different from public ones: They are private. When private litigants are involved, the State is not turned against itself.

Contrary to the Courts suggestion, see ante , at 9, there is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the samea full stomach and a dead bodyit is the means of getting there that attracts notice. I would think it more an affront to someones dignity to be sued by a brother than to be sued by a stranger. While neither may be welcomed, that does not mean they would be equally received.

The Court also contends that petitioners ability to sue state officials in federal court is a consequence of Virginias own decision to establish a public [protection and advocacy] system. Ibid. This cannot mean that Virginia has consented to an infringement on its sovereignty. That argument was rejected below, and petitioner did not seek certiorari on that issue. See Virginia v. Reinhard , 565 F.3d 110, 116118 (CA4 2009); Pet. for Cert. i.

Instead the Court claims that Virginia has only itself to blameif it wanted to avoid its current predicament, it could have chosen to establish a private entity instead. Ante , at 910, and n.5; see also ante , at 3 ( Kennedy , J., concurring). But I am aware of no doctrine to the effect that an unconstitutional establishment is insulated from challenge simply because a constitutional alternative is available. And here the public and private systems are not interchangeable alternatives in any event.

The Courts analysis is also circular; it wrongly assumes Virginia knew in advance the answer to the question presented in this case. Only after concluding that Ex parte Young applies to this arrangementthat for the first time in history a state agency may sue an unwilling State in federal courtcan the Court suggest that Virginia knowingly exposed its officers to suit in federal court.

In a similar vein, the Court asserts that because Virginia law authorizes petitioner to exercise independent litigating authority, petitioner should be treated the same as any other litigant. Ante , at 13. But petitioner is not like any other litigant. While it is true petitioner enjoys some independence from the States executive branch, that does not mean petitioner is independent from the State . As noted, petitioner certainly views itself as The Commonwealth of Virginia, App. 10, and would presumably invoke sovereign immunity itself if sued. As a matter of sovereign immunity law, it should make no difference how a State chooses to allocate its governmental powers among different state agencies or officials.

The Court is wrong to suggest that simply because petitioner possesses independent litigating authority, it may sue state officials in federal court. See ante , at 13 (the Eleventh Amendment presents no obstacle since it was Virginia law that created [petitioner] and gave it the power to sue state officials). There is more to this case than merely whether petitioner needs the approval of the Attorney General to sue, and the Virginia Code provisions cited by the Court say nothing about actions against the State in federal court.

If independent litigating authority is all that it takes, then scores of state entities now suddenly possess the authority to pursue Ex parte Young actions against other state officials in federal court. Reinhard , supra , at 124. There would be no Eleventh Amendment impediment to such suits. Given the number of state agencies across the country that enjoy independent litigating authority, see, e.g. , Brief for State of Indiana etal. as Amici Curiae 1113, the Courts decision today could potentially lead to all sorts of litigation in federal courts addressing internal state government disputes.

And there is also no reason to think that the Courts holding is limited to state agency plaintiffs. According to the Courts basic rationale, state officials who enjoy some level of independence could as a matter of federal law bring suit against other state officials in federal court. Disputes that were formerly resolved in state cabinet rooms may now appear on the dockets of federal courts.


No one questions the continued vitality or importance of the doctrine announced in Ex parte Young . But Ex parte Young was about affording relief to a private party against unconstitutional state action. It was not about resolving a dispute between two different state actors. That is a matter for the State to sort out, not a federal judge.

Our decision in Chisholm v. Georgia , 2 Dall. 419 (1793)permitting States to be sued by private parties in federal courtcreated such a shock of surprise throughout the country that the Eleventh Amendment was at once proposed and adopted. Principality of Monaco v. Mississippi , 292 U.S. 313, 325 (1934) . It is fair to say that todays decision will probably not trigger a similar response. But however much their practical functions and prominence may have changed in the past 218 years, the States remain a vital element of our political structure. Sovereign immunity ensures that States retain a stature commensurate with their role under the Constitution. Allowing one part of the State to sue another in federal court, so that a federal judge decides an important dispute between state officials, undermines state sovereignty in an unprecedented and direct way. The fiction of Ex parte Young should not be extended to permit so real an intrusion.

Because I believe the Courts novel expansion of Ex parte Young is inconsistent with the federal system established by our Constitution, I respectfully dissent.


1 Ex parte Young also rests on the well-recognized irony that an officials unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment . Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105 (1984) (internal quotation marks omitted).

2 While I agree that in Seminole Tribe we refused to permit suit to proceed under Ex parte Young because Congress had foreclosed recourse to the doctrine, ante, at 7, n.3, that simply confirms my point that the availability of Young depends on more than just whether Verizons prescribed inquiry is satisfied. In short, Seminole Tribe makes clear that a plaintiff who files a complaint alleg[ing] an ongoing violation of federal law and seeks relief properly characterized as prospective, Verizon, 535 U.S., at 645 (internal quotation marks omitted), may nonetheless be barred from pursuing an action under Young.

3 Sovereign immunity principles would of course not prohibit this Court from reviewing the federal questions presented by this suit if it had been filed in state court. See ante, at 11. We have held that it is inherent in the constitutional plan that when a state court takes cognizance of a case, the State assents to appellate review by this Court of the federal issues raised in the case whoever may be the parties to the original suit, whether private persons, or the state itself. McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18, 30 (1990) (internal quotation marks and citation omitted). By contrast, there is nothing inherent in the constitutional plan that warrants lower federal courts handling intrastate disputes absent a States consent.