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Apr 9 14

Revisiting Immunity, in brief

by merlin

The following is from a memo that I wrote on November 10, 2008.  I rediscovered this memo while preparing to draft and research a different issue, and checked the information to ensure that it remained accurate.

The updated information has been placed in boldfaced text.  It is accurate still, approximately.  The protections of law for judges and prosecutors are weaker than they were, but remain approximately as strong as this memorandum indicates:

“There does not appear to be a bond requirement established for State Court or Superior Court judges by the Official Code of Georgia.  O.C.G.A. § 15-9-7 sets out a $25,000 bond requirement for Probate Judges, and O.C.G.A. § 15-10-20(h) sets out the same amount of bond for Magistrate Court Judges.  The same amount of bond is required under § 15-7-48 for persons serving as clerk of State Court, and § 15-6-59(a) requires a $150,000 bond from persons serving as clerks of Superior Court, unless appointed or becoming clerk by operation of law.  However, there does not appear to be any parallel provision of any kind for those acting as judges in Superior or State Court.

The rationale underlying the exemption of these Public Officers from the bond requirements for their subordinates and other public officers appears to arise from the doctrine known as “judicial immunity”, which vests a judge with absolute immunity for performance of official duties.  Both State and Federal caselaw provide illustration of this doctrine, holding generally that a judge is absolutely immune from suit in performing his judicial responsibilities.  Sun v. Forrester, 503 U.S. 921 (1991).  Decisions since 1993 have found situations in which neither a judge nor a prosecutor are absolutely immune, but they are rare and such decisions are sporadic, at best.

The requirement that a public officer give bond is “…intended to secure the public from loss by reason of the official delinquency of that officer.” Anderson v. Blair, 121 Ga. 120, 48 S.E. 951, 953 (Ga. 1904).  However, the doctrine of judicial immunity has evolved to address actions performed by the judiciary in discharge of their official duties, exempting them from this bond requirement for purposes of expediency, as a direct consequence of the nature of their duties.  “It is ultra-important in our democracy to preserve the doctrine of judicial immunity to enable our judges to exercise within their lawful jurisdiction untrammeled determination without apprehension of subsequent damage suits.”  Smith v. Hancock, 150 Ga.App. 80, 81, 256 S.E.2d 627 (Ct. App. 1979) (quoting Hill v. Bartlett 126 Ga.App. 833, 840, 192 S.E.2d 284 (Ct. App. 1972)).  The concept of judicial immunity was well-explained in Robinson v. Becker, 265 Ga.App. 692, 694 (Ct. App. 2004), which states generally that it protects judges from State law claims as well as actions arising under Title 42 of the United States Code, but that the doctrine does not apply “(1) when the judge commits a nonjudicial act, or an act not taken in the judge’s judicial capacity, and (2) when the judge acts in a judicial capacity, but completely without jurisdiction.”

This doctrine has been extended to protect other officials, as well, including judges of inferior courts and even officers of the Court.

In Smith v. Hancock, the doctrine of quasi-judicial immunity, which also provides immunity for acts performed within the actor’s jurisdiction, was applied to provide immunity for a District Attorney.  Id. at 81.  Using the same doctrine, judges of inferior courts have also been granted immunity for acts performed in their official capacity, as illustrated by the decision in Hill v. Bartlett, discussing a justice of the peace and even a judge in Recorder’s Court.  The rule was qualified by the observance that “[w]here there is clearly no jurisdiction over the subject-matter, any authority exercised is usurped authority, and for the exercise of such authority, when known to the judge, no excuse is permissible.”  Hill v. Bartlett, 126 Ga.App. 833, 837 (Ct. App. 1972) (quoting Bradley v. Fisher, citation unknown).”

Apr 2 14

Georgia Appeals from Magistrate to Superior Court

by merlin

Following the conclusion of a matter in Magistrate Court in Georgia, an appeal may be had in Superior Court on a de novo basis.  That is very important, by the way – “de novo” is defined by Law.com, at http://dictionary.law.com/Default.aspx?selected=489, as meaning “Latin for “anew,” which means starting over, as in a trial de novo. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, de novo.”  Therefore, the Court hears all of the evidence, arguments, etc., fresh.

The appeal is had by filing a notice of appeal with the Magistrate Court no later than thirty (30) days after the judgment complained of, or ten (10) days for dispossessory cases.

The procedure, etc., is governed by Section 5-3-21 of the Official Code of Georgia, which also contains the suggested/strongly recommended form for the Notice of Appeal itself:

(a) An appeal to the superior court may be taken by filing a notice of appeal with the court, agency, or other tribunal appealed from. No particular form shall be necessary for the notice of appeal, but the following is suggested:

                             (NAME OF INFERIOR JUDICATORY)

STATE OF GEORGIA

)

____________                             )

v.                                               )        (Case number designation)

___________                             )

)

APPEAL TO SUPERIOR COURT

   Notice is hereby given that  ______________, appellant(s) herein, hereby appeal to the Superior Court of

    __________County from the judgment (or order, decision, etc.) entered herein on (date).

   Dated:_______________

_______________

Attorney For  Appellant

Address

(b) A copy of the notice of appeal shall be served on all parties in the same manner prescribed by Code Section 5-6-32. Failure to perfect service on any party shall not work dismissal, but the superior court shall grant continuances and enter such other orders as may be necessary to permit a just and expeditious determination of the appeal.

This notice of appeal is not precisely identical to the one contained in the statute, as several edits were made for the purpose of placing it on this website.  Further, the form that I employ on behalf of clients is also a little different, but essentially the same.

Mar 28 14

Legitimation Must Be a Separate Proceeding

by merlin

Previously, this site has addressed Section 19-7-22 of the Official Code of Georgia, which sets forth the right and mechanism of the father to legitimate his relationship with his biological child.  In section f.1 of that statute, certain other rights are granted to the petitioner.  It says that “[t]he petition for legitimation may also include claims for visitation, parenting time, or custody. If such claims are raised in the legitimation action, the court may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard. In a case involving allegations of family violence, the provisions of paragraph (4) of subsection (a) of Code Section 19-9-3 shall also apply.”

However, legitimation cannot be raised as part of a proceeding to prevent an adoption, and must be pursued separately.  The case that establishes this rule in Georgia is Brewton v. Poss, 316 Ga.App. 704 (Ga. Ct. App. 2012).  Note that counsel for Poss, who won the case, was James B. Outman, whose abilities in this field are to be respected and admired.  The opinion follows:

Christoper Michael Blanchard, for Brewton.

James B. Outman, Albert L. Stone Jr., Danielsville, for Poss.

DOYLE, Presiding Judge.

        Kenneth Jason Poss initiated a proceeding to adopt T.J.B., the biological son of Kristen Poss, Kenneth’s wife. Lee Thomas Brewton, the putative biological father, filed a petition for legitimation of T.J.B. as a part of that proceeding. Kenneth moved to quash the petition, and the superior court granted the motion, giving rise to this discretionary appeal. 1 Brewton contends that the superior court erred by ruling that he failed to meet the requirements for filing a petition for legitimation under OCGA § 19–7–22 and therefore denying his motion to sever the petition he filed in the adoption proceeding. For the reasons that follow, we reverse.

        The record shows that in February 2011, Kenneth filed in superior court a petition for adoption of T.J.B. and notified Brewton by publication.2 The last date of publication was February 25, 2011. On March 4, 2011, Brewton, represented by counsel, filed in the same court a petition for legitimation of his relationship with T.J.B., naming Kristen as a defendant, and he attempted to serve Kristen by mailing a copy to Albert Stone, Jr., who had filed the adoption petition on behalf of Kenneth.3 Brewton’s legitimation petition was filed with the same civil action number as Kenneth’s adoption petition, and no filing fee was required by the clerk.

        On March 31, 2011, Kenneth moved to quash Brewton’s legitimation petition. After receiving the motion, Brewton personally served Kristen on April 20, 2011. On May 11, 2011, Kristen appeared pro se and filed an answer to the legitimation petition and a counterclaim for pregnancy-related medical costs and child support. Brewton filed a response to the motion to quash and moved to sever his legitimation petition from the adoption proceeding. After a hearing, the superior court granted Kenneth’s motion to quash, thereby denying Brewton’s motion to sever, on the ground that Brewton had failed to properly file his legitimation petition. Brewton filed an application for discretionary appeal, which this Court granted.

         Brewton contends that the trial court erred by ruling that he failed to properly file his legitimation petition in accordance with OCGA § 19–7–22, which provides as follows, in relevant part:

        (a) A father of a child born out of wedlock may render his relationship with the child legitimate by petitioning the superior court of the county of the residence of the child’s mother or other party having legal custody or guardianship of the child…. If a petition for the adoption of the child is pending, the father shall file the petition for legitimation in the county in which the adoption petition is filed.

        (b) The petition shall set forth the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name. If the mother is alive, she shall be named as a party and shall be served and provided an opportunity to be heard as in other civil actions under Chapter 11 of Title 9, the “Georgia Civil Practice Act.”

Based on this Code section, the trial court ruled that Brewton’s petition “had no legal effect” because it was not filed as a separate civil action apart from the pending adoption proceeding.

        OCGA § 19–7–22 does not define the term “petition,” 4 and does not explicitly state whether the petition must be filed as a separate civil action, or whether it could be filed as part of a pending action. 5 Thus, we turn to the rules of statutory construction, 6 which “require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.” 7

        Turning to the terms of OCGA § 19–7–22, we note that although the Code section does not explicitly state that a legitimation petition must be a separate civil action, the Code section employs language suggesting that a legitimation petition would initiate a separate action as opposed to merely requesting relief within another pending case. For example, subsection (b) refers to “other civil actions,” meaning that a legitimation petition itself is viewed as a type of civil action. Subsection (f.1) refers to the petition as a “legitimation action.” 8 This language within OCGA § 19–7–22 suggests that legitimation petitions are separate civil actions. And subsection (g), applicable to suits for paternity under OCGA § 19–7–43(a)(4), explicitly state that an alleged father may file a third party action for legitimation as part of his response to the paternity suit. The absence of language explicitly providing for a similar avenue in the adoption context implies that the legislature intended legitimation petitions to be stand-alone actions.9

        Moreover, the adoption statutes, which are implicated in this context, are informative. OCGA § 19–8–12, which requires an adoption petitioner to give notice to the biological father, provides that a biological father will lose all rights to the child unless he files a petition to legitimate and files “ notice of the filing of the petition to legitimate… with the court in which the [adoption] action … is pending….” 10 It would make no sense to require a separate notice of the filing of the legitimation petition if it already was a part of the adoption proceeding, and such a requirement would be superfluous. Therefore, like the legitimation statute, the adoption statute functions as if a legitimation petition would be filed in a separate action.

         In light of these statutory schemes, we conclude that the petition in this case should have been filed as a separate civil action. Having so concluded, we must nevertheless consider whether the trial court erred by denying Brewton’s motion to sever. It is clear that Brewton’s petition complied with the substance of the legitimation statute, other than by having a separate civil action number: the petition contained the requisite information, it was served on the mother,11 and it was timely filed in the proper court. Further, Brewton’s failure to file his petition as a separate civil action caused no prejudice to anyone. OCGA § 1–3–1, applying to the construction of statutes generally, provides that “substantial compliance with any statutory requirement … shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” 12 Applying this policy here is appropriate because “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring … [Termination of that right] can be done by the court only under the most carefully controlled and regulated circumstances….” 13 Therefore, in light of the fundamental right at stake, the lack of prejudice, and Brewton’s substantial compliance with the statute in every way other than prevailing upon the clerk to file the petition under a different civil action number, we conclude that the trial court abused its discretion by denying his motion to sever.

        Kenneth argues that Brewton’s failure to pay a filing fee and file a civil case filing form required by OCGA § 9–11–3(b) are fatal to his legitimation claim. But the record shows that the clerk, when asked by Brewton, did not require payment of a filing fee, and Brewton’s attorney merely followed the procedure suggested by the clerk. OCGA § 9–11–3(b) provides that

        [i]f, after a civil action has been filed, the court presiding over the civil action decides that the civil case filing form has not been filed or has been filed incorrectly, the court shall require the plaintiff to file the civil case filing form or an amended form. In no case shall the failure to accurately complete the civil case filing form required by this Code section provide a basis to dismiss a civil action.14

Thus, under the circumstances of this case, any such filing defects can be cured upon remittur.

        Judgment reversed.

ANDREWS and BOGGS, JJ., concur.

——–

Notes:

        1. Brewton filed his application pursuant to OCGA § 5–6–35(a)(2), which addresses domestic relations cases. Having granted the application, we need not decide whether the ruling on his legitimation petition would be directly appealable under the collateral order doctrine. See, e.g., Britt v. State, 282 Ga. 746, 748(1), 653 S.E.2d 713 (2007).

        2. See OCGA § 19–8–12(b), (c).

        3. Kristen Poss was not a party to the adoption action.

        4. But see Phagan v. State, 287 Ga. 856, 858–859, 700 S.E.2d 589 (2010) (“petition” and “complaint” are synonymous and both are pleadings within the purview of the Civil Practice Act).

        5. Compare Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406, 407, 696 S.E.2d 640 (2010) (OCGA § 9–11–9.1, on its face, required “a motion to dismiss to be [separately] filed in addition to the first responsive pleading,” because it required the defendant to raise its dispositive defense “ ‘ by motion to dismiss filed contemporaneously with its initial responsive pleading.’ ”) (emphasis in original).

        6. See Cook v. NC Two, L.P., 289 Ga. 462, 465, 712 S.E.2d 831 (2011) (“rules of statutory construction are not applicable when the statute is plain and unambiguous and susceptible to but one natural and reasonable construction since judicial construction of such a statute is unauthorized”).

        7. (Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003), citing OCGA § 1–3–1(a).

        8. (Emphasis supplied.)

        9. See SRB Investment Svcs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 6(3)(a), 709 S.E.2d 267 (2011) (presuming that omission of certain language was intentional because another statute contained the language); In the Interest of T.C.D., 281 Ga.App. 517, 518, 636 S.E.2d 704 (2006) (language cannot be added to a statute by judicial decree).

        10. (Emphasis supplied.) OCGA § 19–8–12(e). Consistent with the notice scheme, Uniform Superior Court Rule 39.6 requires adoption dockets to be maintained separate from regular civil dockets.

        11. The fact that Brewton did not complete service on the mother within the 30–day deadline in OCGA § 19–8–12(e) was not fatal for the same rationale as explained inIn the Interest of A.H., 279 Ga.App. 77, 82(2), 630 S.E.2d 587 (2006).

        12. (Emphasis supplied.)

        13. (Punctuation omitted.) Id.

        14. (Emphasis supplied.)

Mar 26 14

CASA Duties in Georgia (in brief)

by merlin

In Georgia, a Court-Appointed Special Advocate, or CASA, is a person (appointed by the Court, plainly) whose entire purpose in a case is to advocate for the best interests of a minor child who is the subject of a deprivation proceeding in juvenile court.  Section 15-11-106 establishes the power of the Courts to appoint a CASA:

(a) (1) Before executing duties as a CASA, and upon completion of all the requirements of an affiliate court appointed special advocate program, a CASA shall be sworn in by a judge of the juvenile court in the court or circuit in which he or she wishes to serve. A CASA shall not be assigned a case prior to being sworn in by a juvenile court judge as set forth in this paragraph.

(2) If a juvenile court judge determines that a child involved in a dependency proceeding needs a CASA, the judge shall have the authority to appoint a CASA, and in such circumstance shall sign an order appointing a CASA at the earliest possible stage of the proceedings. Such order shall impose on a CASA all the duties, rights, and responsibilities set forth in this Code section and Code Sections 15-11-104 and 15-11-105.

(b) The role of a CASA in juvenile court dependency proceedings shall be to advocate for the best interests of the child.

(c) In addition to the reasons stated in subsection (h) of Code Section 15-11-104, the court may discharge a CASA upon finding that the CASA has acted in a manner contrary to the mission and purpose of the affiliate court appointed special advocate program.

The powers of the CASA are those set out for a Guardian Ad Litem in Section 15-11-105.  The duties that the CASA must fulfill are specifically written there (insert “CASA” for “Guardian Ad Litem”):

“(a) A guardian ad litem shall advocate for a child’s best interests in the proceeding for which the guardian ad litem has been appointed.

(b) In determining a child’s best interests, a guardian ad litem shall consider and evaluate all of the factors affecting the best interests of a child in the context of a child’s age and developmental needs. Such factors shall include:

(1) The physical safety and welfare of such child, including food, shelter, health, and clothing;

(2) The mental and physical health of all individuals involved;

(3) Evidence of domestic violence in any current, past, or considered home for such child;

(4) Such child’s background and ties, including familial, cultural, and religious;

(5) Such child’s sense of attachments, including his or her sense of security and familiarity and continuity of affection for the child;

(6) The least disruptive placement alternative for such child;

(7) The child’s wishes and long-term goals;

(8) The child’s community ties, including church, school, and friends;

(9) The child’s need for permanence, including his or her need for stability and continuity of relationships with a parent, siblings, and other relatives;

(10) The uniqueness of every family and child;

(11) The risks attendant to entering and being in substitute care;

(12) The preferences of the persons available to care for such child; and

(13) Any other factors considered by the guardian ad litem to be relevant and proper to his or her determination.”

 

The statute also sets out the minimum responsibilities of the CASA.   These may be viewed as invasive by the parent of the child, but they are statutorily-required by the CASA.  Note that this is in line with giving the CASA wide lattitude in best fulfilling his or her duties:

“(c) Unless a child’s circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall at a minimum:

(1) Maintain regular and sufficient in-person contact with the child and, in a manner appropriate to his or her developmental level, meet with and interview such child prior to custody hearings, adjudication hearings, disposition hearings, judicial reviews, and any other hearings scheduled in accordance with the provisions of this chapter;

(2) In a manner appropriate to such child’s developmental level, ascertain such child’s needs, circumstances, and views;

(3) Conduct an independent assessment to determine the facts and circumstances surrounding the case;

(4) Consult with the child’s attorney, if appointed separately, regarding the issues in the proceeding;

(5) Communicate with health care, mental health care, and other professionals involved with such child’s case;

(6) Review case study and educational, medical, psychological, and other relevant reports relating to such child and the respondents;

(7) Review all court related documents;

(8) Attend all court hearings and other proceedings to advocate for such child’s best interests;

(9) Advocate for timely court hearings to obtain permanency for such child;

(10) Protect the cultural needs of such child;

(11) Contact the child prior to any proposed change in such child’s placement;

(12) Contact the child after changes in such child’s placement;

(13) Request a judicial citizen review panel or judicial review of the case;

(14) Attend citizen panel review hearings concerning such child and if unable to attend the hearings, forward to the panel a letter setting forth such child’s status during the period since the last citizen panel review and include an assessment of the DFCS permanency and treatment plans;

(15) Provide written reports to the court and the parties on the child’s best interests, including, but not limited to, recommendations regarding placement of such child, updates on such child’s adjustment to placement, DFCS’s and respondent’s compliance with prior court orders and treatment plans, such child’s degree of participation during visitations, and any other recommendations based on the best interests of the child;

(16) When appropriate, encourage settlement and the use of any alternative forms of dispute resolution and participate in such processes to the extent permitted; and

(17) Monitor compliance with the case plan and all court orders.”

It cannot be stressed enough – the CASA is to have full access to everything involving the child, and a CASA who takes his or her job seriously ought to leave no stone unturned if there is sufficient suspicion.  The statute goes on:

“(d) (1) Except as provided in Article 11 of this chapter, a guardian ad litem shall receive notices, pleadings, or other documents required to be provided to or served upon a party and shall be notified of all court hearings, judicial reviews, judicial citizen review panels, and other significant changes of circumstances of a child’s case which he or she is appointed to the same extent and in the same manner as the parties to the case are notified of such matters.

(2) A guardian ad litem shall be notified of the formulation of any case plan of a child’s case which he or she is appointed and may be given the opportunity to be heard by the court about such plans.

(e) Upon presentation of an order appointing a guardian ad litem, such guardian ad litem shall have access to all records and information relevant to a child’s case to which he or she is appointed when such records and information are not otherwise protected from disclosure pursuant to Code Section 19-7-5. Such records and information shall not include records and information provided under Article 11 of this chapter or provided under Chapter 4A of Title 49.

(f) All records and information acquired or reviewed by a guardian ad litem during the course of his or her appointment shall be deemed confidential and shall not be disclosed except as ordered by the court.

(g) Except as provided in Code Section 49-5-41, regarding access to records, any guardian ad litem who discloses confidential information obtained during the course of his or her appointment, in violation of law, shall be guilty of a misdemeanor. A guardian ad litem shall maintain all information and records regarding mental health, developmental disability, and substance abuse according to the confidentiality requirements contained in Code Section 37-3-166, 37-4-125, or 37-7-166, as applicable.

(h) In the event of a change of venue, the original guardian ad litem shall, as soon as possible, communicate with the appointed guardian ad litem in the new venue and shall forward all pertinent information to the new guardian ad litem.”

 

Mar 25 14

Adhesion Contracts No Longer Viewed as Unfair Per Se

by merlin

Though contracting for goods or services necessarily involves bargaining between two or more parties, in today’s modern society there are many examples of a “take it or leave it” adhesion contract.  For further research into the use and application of adhesion contracts in a modern context, the treatise primarily referred to in this entry is the comprehensive book on contract law in modern American society, Corbin on Contracts.  I am using the 2013 LexisNexis Desk Edition, by John E. Murray, Jr. (Matthew Bender & Company, Inc.), for reference.

What the current treatment of this issue reiterates is something that I have discovered to be true in my own practice – there must be substantive issues, as well as mere procedural issues, for Courts to strike an agreement down.  When applied to contractual relationships, there must be some proof given that the terms are unfair.  The text quotes Urban Invest, Inc. v. Branham, 464 A.2d 93, 100 (D.C. 1993), for this proposition, saying “[w]ithout proof that the terms are unfair, the court normally will be unable to ascertain what detriment the weaker party suffered as a result of the bargaining process.”  A fine example that I have personally observed is imbalanced settlement agreements, and this demonstrates the fundamental flaw with ex parte Court approval of terms.

 The text concludes its lesson on unconscionability (the label that would be applied to genuinely unfair contract terms) with a test for the presence of the label, akin to the standard of “I know it when I see it”.  It quotes Professor Llewellyn, the author of Uniform Commercial Code Section 2-302, saying “[w]hen it gets too stiff to make sense, the court may knock it over.”

The test for such unconscionability as will invalidate an adhesion contract – a high bar is set for this, by the way, tantamount to actual fraud – is set forth most recently in Hough v. Region’s Fin. Corp. (In re Checking Account Overdraft Litig.), 672 F.3d 1224 (11th Cir. 2012):

Robert Cecil Gilbert, Grossman Roth PA, Coral Gables, FL, G. Franklin Lemond, Jr., Edward Adam Webb, Webb, Klase & Lemond, LLC, Atlanta, GA, Bruce Stephen Rogow, Bruce S. Rogow, PA, Fort Lauderdale, FL, for Plaintiffs–Appellees.

William James Holley, II, Nancy H. Baughan, David B. Darden, Constance Melissa Ewing, Parker, Hudson, Rainer & Dobbs, LLP, Atlanta, GA, for Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Florida.

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

        Regions Financial Corporation and Regions Bank (collectively “Regions”) appeal the denial of their renewed motion to compel Lawrence and Pamela Hough to arbitrate their complaint against Regions. 9 U.S.C. § 16(a)(1)(C). The Houghs sued Regions for allegedly violating federal and state law by collecting overdraft charges under its deposit agreement, and Regions moved to compel arbitration based on an arbitration clause in that agreement. The district court denied the motion to compel on the ground that the arbitration clause was substantively unconscionable because it contained a class action waiver, but we vacated that ruling and remanded for further consideration in the light of AT&T Mobility LLC v. Concepcion, 563 U.S. ––––, 131 S.Ct. 1740179 L.Ed.2d 742 (2011). On remand, Regions renewed its motion to compel, which the district court denied on the ground that the arbitration clause was substantively unconscionable under Georgia law because a provision granting Regions the unilateral right to recover its expenses for arbitration allocated disproportionately to the Houghs the risks of error and loss inherent in dispute resolution. Because the reimbursement provision is conscionable under Georgia law, we reverse the order denying the renewed motion to compel of Regions and remand with instructions to compel arbitration.

I. BACKGROUND

        Approximately ten years after the Houghs became customers of Regions Bank, the Houghs filed a complaint “on behalf of themselves and all persons similarly situated” against Regions. The Houghs complained that they were assessed overdraft charges unfairly on their checking account. The complaint alleged five acts of wrongdoing by Regions: (1) Regions breached its duty of good faith and fair dealing with its customers; (2) Regions converted funds by levying overdraft charges unfairly; (3) Regions processed transactions and fees deceptively to maximize overdraft charges; (4) Regions loaned money at a usurious rate to process transactions when the account contained insufficient funds; and (5) Regions was unjustly enriched.

        Regions moved to compel the Houghs to arbitrate their complaint individually. Regions argued that the Houghs had agreed in paragraph 34 of its deposit agreement that, “except as expressly provided[,] … either party [could] elect to resolve by BINDING ARBITRATION any controversy, claim, … dispute or disagreement” and that “no Claim [could] be joined with another dispute or lawsuit … or resolved on behalf of a class of similarly situated persons ….” Regions requested that the district court, “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, … direct[ ] the parties to proceed to arbitrate in accordance with the terms of the agreement.”

        The Houghs responded that the arbitration provisions in the deposit agreement were unconscionable. The Houghs argued, relevant to this appeal, that the arbitration provisions were substantively unconscionable because the expenses imposed in paragraphs 34 and 36 of the deposit agreement created a financial disincentive to arbitrate. Although paragraph 34 capped the Houghs’ costs for the arbitration proceeding at $125, paragraph 36 required the Houghs to reimburse Regions as a prevailing party for its costs of arbitration. Paragraph 36 provided that “[Depositors] agree to reimburse [Regions] for [its] costs and expenses (including reasonable attorney’s fees) in connection with … (iii) any action or arbitration regarding this Agreement, [the depositor's] account or services linked to the account where [Regions] [is] the prevailing party.” Paragraph 36 also provided that “[Regions] may charge any account of [a depositor] for such costs and expenses without further notice.”

        In reply, Regions argued that the district court “should deny the conscionability challenge and … enforce the parties’ arbitration agreement.” Regions argued that the reimbursement provision was commercially reasonable and conscionable. Regions also argued that it never had exercised its right to reimbursement and that the provision “could not render the arbitration agreement unconscionable” because the provision “is expressly severable.” Additionally, Regions argued that the Houghs could, as permitted in paragraph 34, “pursue their individual claims in small claims court” and, if they prevailed on their claims of conversion and usury, could recover attorney’s fees. Regions stated in footnote 16 of the reply that “[i]f [it were to] prevail on [the] motion [to compel], it [would] not file an arbitration action” and the Houghs could then “decide … [to] initiate an individual action in small claims court or in arbitration.”

        After we remanded for the district court to reconsider the motion to compel in the light of Concepcion, Regions renewed its motion to compel arbitration. Regions argued, based on the decision of the Supreme Court in Rent–A–Center, W., Inc. v. Jackson, 561 U.S. ––––, 130 S.Ct. 2772177 L.Ed.2d 403 (2010), that the district court should “compel arbitration of all issues” because “the arbitration agreement delegates threshold arbitrability issues to the arbitrator.” And Regions quoted in its renewed motion a sentence in paragraph 34 of the deposit agreement providing that the parties would submit all disputes to an arbitrator: “Any dispute regarding whether a particular controversy is subject to arbitration, including any claim of unconscionability and any dispute over the scope or validity of this agreement to arbitrate disputes or of this entire Agreement, shall be decided by the arbitrator(s).” Regions also argued, based on our decision in Cappuccitti v. DirecTV, Inc., 623 F.3d 1118 (11th Cir.2010), that the Houghs “created unconscionability by … refusing to plead a cause of action [under the Georgia Fair Business Practices Act] that would [have] confer[red] automatic attorney’s fees.”

        The Houghs opposed the renewed motion of Regions. The Houghs argued that the district court should decide the issue of conscionability because, in contrast with the arbitration agreement in Rent–A–Center, the arbitration clause in the Houghs’ deposit agreement failed to “clearly place[ ] [the Houghs] on notice that an arbitrator would decide questions of arbitrability.” The Houghs contended that the delegation of all disputes to the arbitrator was substantively unconscionable, and the Houghs argued that the arbitration provisions in the deposit agreement were procedurally and substantively unreasonable.

        The district court denied the renewed motion to compel. As to the initial question of who should decide conscionability, the district court concluded that Regions “waived its right to arbitrate the threshold issue of unconscionability” by “ask[ing] [the district] Court to determine [that] question in [its] original motion to compel arbitration, filed well over a year ago.” The district court ruled that the arbitration clause was substantively unconscionable under Georgia law because the provision granting Regions the right of reimbursement allocated “nearly all the risks of engaging in dispute resolution” unfairly on the Houghs. The district court rejected the argument of Regions that the reimbursement provision in paragraph 36 was severable from the arbitration clause in paragraph 34. The district court ruled that Regions “waived the right to invoke [the severance] provision” by failing to mention it “in either its Motion [to compel] or the Reply filed in support of its original Motion.”

II. STANDARD OF REVIEW

         We review de novo the denial of a motion to compel arbitration. Jenkins v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 873 (11th Cir.2005).

III. DISCUSSION

        Regions contends that it was entitled to compel the Houghs to arbitrate their complaint and that the district court ignored precedent requiring it to enforce the agreement to arbitrate. Regions argues that the district court should have submitted the issue of conscionability to the arbitrator, the arbitration clause was conscionable and, even if unconscionable, the clause was severable. Although we conclude that Regions waived the right to have the arbitrator resolve the issue of conscionability, because we agree with Regions that the reimbursement provision was conscionable, we need not address whether the clause was severable.

         Regions waived its right to arbitrate the conscionability of its arbitration clause. The clause contained “sweeping language concerning the scope of the questions committed to arbitration,” Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 453, 123 S.Ct. 2402 2407, 156 L.Ed.2d 414 (2003), and “clearly and unmistakably provide[d],”Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 591, 154 L.Ed.2d 491 (2002), that an arbitrator should resolve “any claim of unconscionability,” but Regions did not invoke that delegation provision in response to the Houghs’ arguments that the clause was unconscionable. Regions instead asked the district court to “deny the conscionability challenge.” The actions of Regions are virtually indistinguishable from the actions of Princess Cruise Lines in Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 (11th Cir.2011), where we held that Princess was barred from arguing that the district court should have submitted the issue of arbitrability to an arbitrator because Princess “asked the district court to decide for itself whether the dispute was subject to arbitration.” Regions, “as a party to the contract it signed, is presumed to know that it had … [the right] to arbitrate” the issue of conscionability, Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga.App. 292, 294, 609 S.E.2d 103, 105 (2004), and “waive[d] [that aspect of the] agreement to arbitrate by taking actions that [were] inconsistent with [that] right of arbitration,” M. Homes, LLC v. S. Structural, Inc., 281 Ga.App. 380, 383,636 S.E.2d 99, 101 (2006) (internal quotation marks omitted).

         The district court erred in its resolution of the issue of substantive conscionability. The arbitration agreement permitted Regions, if it was “the prevailing party,” to obtain “reimburse[ment] for [its] costs and expenses (including reasonable attorney’s fees) … [in] arbitration” and to collect that amount by “charg[ing] [the Houghs'] account.” The district court concluded that the reimbursement provision was unconscionable because Regions had an exclusive right of setoff, but under Georgia law “an arbitration provision is not unconscionable because it lacks mutuality of remedy.” Crawford v. Great Am. Cash Advance, Inc., 284 Ga.App. 690, 693, 644 S.E.2d 522, 525 (2007); see alsoGreene v. Citizens & S. Bank of Cobb Cnty., 134 Ga.App. 73, 76, 213 S.E.2d 175, 178 (1975) (“A contract allowing a bank a set-off of its indebtedness to a depositor against the depositor’s indebtedness to it is not unconscionable.”). The arbitration agreement is not substantively unconscionable.

         The district court also ruled that the arbitration clause had “a degree of procedural unconscionability,” but to be unconscionable under Georgia law, a contract must be “so one-sided” that “ ‘no sane man not acting under a delusion would make and that no honest man would’ ” participate in the transaction. NEC Techs., Inc. v. Nelson, 267 Ga. 390, 391, 478 S.E.2d 769, 771 & n. 2 (1996) (quoting R.L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966, 214 S.E.2d 360, 363 (1975)). The arbitration clause in the Houghs’ agreement falls well short of this standard. Although the district court found troubling that the clause was presented to the Houghs “on a take-it-or-leave-it basis with no opt-out provision,” under Georgia law, an adhesion contract is not per se unconscionable. See Crawford v. Results Oriented, Inc., 273 Ga. 884, 885, 548 S.E.2d 342, 343 (2001) (citing Munoz v. Green Tree Fin. Corp., 343 S.C. 531542 S.E.2d 360 (2001)); see also Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1377 (11th Cir.2005) (despite the existence of a “bargaining disparity” common to an employment relationship, it did not render the arbitration agreement entered unconscionable under Georgia law). As the Supreme Court has recognized, “[m]ere inequality in bargaining power … is not a sufficient reason to hold that arbitration agreements are never enforceable ….”Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33, 111 S.Ct. 1647 1655, 114 L.Ed.2d 26 (1991). The district court also criticized the clause as “not conspicuous” because it was “buried on the twenty-first page of a forty-three page, single-spaced document” and “in a maze of fine print,” but the district court overlooked other aspects of the document that made apparent the agreement to arbitrate. The first two pages of the deposit agreement thrice reference that it contains “BINDING ARBITRATIONprovisions,” and the second page of the agreement contains a separate paragraph typed in all caps, bold, and underlined stating that “THIS AGREEMENT CONTAINS PROVISIONS FOR BINDING ARBITRATION” and that “ACCEPTANCE OF [THE] AGREEMENT INCLUDES YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH PROVISIONS.” And reference to the arbitration clause is not difficult: the table of contents states that the paragraph regarding “Arbitration and Waiver of Jury Trial” is located on pages 21 through 23, and that paragraph explains in bold typeset what kinds of disputes are subject to arbitration. The Supreme Court invalidated in Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681116 S.Ct. 1652134 L.Ed.2d 902 (1996), a requirement under state law that operated to “singl[e] out arbitration provisions for suspect status” on the ground that the Federal Arbitration Act requires that “such provisions be placed ‘upon the same footing as other contracts.’ ” Id. at 687, 116 S.Ct. at 1656 (quoting Scherk v. Alberto–Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449 2453, 41 L.Ed.2d 270 (1974)). The Houghs fail to cite any case law that requires provisions relating to arbitration be “conspicuous,” and even if this were the standard, the language regarding arbitration in the Houghs’ agreement is conspicuous. The arbitration agreement is not procedurally unconscionable.

        The Federal Arbitration Act provides that an arbitration agreement “shall be … enforceable, save upon such grounds as exist at law or in equity for [its] revocation.” 9 U.S.C. § 2. The arbitration clause in the Houghs’ agreement is neither procedurally nor substantively unconscionable. Because Regions is entitled to “an order directing that such arbitration proceed in the manner provided for in [its deposit] agreement,” id. § 4, we need not address the alternative argument of Regions about severability.

IV. CONCLUSION

        We REVERSE the order that denied the renewed motion of Regions to compel the Houghs to arbitration. We REMAND with instructions to compel arbitration.

        REVERSED AND REMANDED WITH INSTRUCTIONS.

Mar 24 14

Adhesion Contracts (in brief)

by merlin

It has been almost two weeks since this blawg was updated, for which I deeply apologize!

Tonight’s topic is “adhesion contracts”.  The source that I have used primarily for my investigation into this issue is the excellent text “Georgia Contracts: Law and Litigation” by John K. Larkins, Jr. (copyright 2011 by Thomson Reuters), and some of the phraseology is theirs.  This type of contract is characterized by a recognizable imbalance in the negotiating power of the parties.  It is often typified by employment contracts signed by the employee and pre-printed by the employer, in which negotiation is at a minimum or non-existent.  Other relatable examples that the Larkins text lists include utility contracts and insurance contracts.

This is defined by Black’s Law Dictionary (the Sixth Edition, published in 1990) as a “[s]tandardized contract form offered to consumers of goods and services on essentially [a] “take it or leave it” basis without affording [the] consumer realistic opportunity to bargain and under such conditions that [the] consumer cannot obtain [the] desired product except by acquiescing in [the] form contract.  [The] [d]istinctive feature of [an] adhesion contract is that [the] weaker party has no realistic choice as to its terms.

 

The consequence of a finding by the Court that the parties have created an adhesion contract is that the contract is construed against the party deemed to be the maker of the document, who is viewed as having superior bargaining power.  What is particularly interesting is that some adhesion contracts may be void entirely, because they are deemed to be against public policy (the Larkins text provides examples, including covenants not to compete and exculpatory clauses in agreements with professionals, presumably referring to attorneys).

A recent case used by the text to support the definition it provides for adhesion contracts is Realty Lenders, Inc. v. Levine, 286 Ga.App. 326 (Ga. Ct. App. 2007):

        Jesse L. Young, Stone Mountain, for Appellant.

        James E. Friese, Atlanta, for Appellee.

        BERNES, Judge.

        This is a dispossessory action brought by appellees Hilda Levine, Roy Levine, and the estate of Mark Levine d/b/a Village Square Ventures (collectively, “Village Square”) against appellant Realty Lenders, Inc. d/b/a ReMax Premier (“ReMax”), the commercial tenant of property owned by Village Square. Following a bench trial, the trial court found that ReMax had breached the lease and entered a monetary judgment in favor of Village Square in the amount of 60,995.87 for overdue rent and other charges, plus 3,000 in attorney fees. The trial court denied ReMax’s counterclaim seeking a set off for repairs it allegedly made to the premises. On appeal, ReMax contends that the trial court erred in denying its counterclaim and in awarding Village Square attorney fees. Finding no error, we affirm.

        On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court’s findings of fact. Ellis v. Fuller, 282 Ga.App. 307, 308, 638 S.E.2d 433 (2006). So viewed, the trial record reflects that Village Square is the owner of the premises located at 5474 Memorial Drive. In 1999, ReMax entered into a three-year commercial lease agreement for several suites located on the premises. Over the ensuing years, the lease was twice amended, extending its term. Then, in August 2004, the parties entered into a “Third Amendment to Lease” that incorporated the terms of the original lease and extended the lease term through October 31, 2005 (the “Amended Lease”).

        Under the Amended Lease, ReMax agreed to pay monthly base rent in the amount of 8,569.72. If Village Square did not receive the full rent within five days of the due date, ReMax was obliged to pay a late fee. Furthermore, ReMax agreed that “there [would] be no renewal of [the] lease by operation of law,” and that if it remained in possession of the suites following the lease expiration date, it would pay holdover rent at “a rental rate equal to 150% of the rate in effect at the end” of the lease term. In addition to rent-related charges, ReMax promised to pay a set monthly fee of 1,302.38 representing a “proportionate amount of all common area electrical, grounds maintenance charges, security services and other common area charges and expenses . . . (`the CAM charges’).” Finally, ReMax agreed to pay reasonable attorney fees incurred by Village Square in enforcing any of the obligations imposed upon ReMax by the Amended Lease.

        In December 2005, Village Square commenced the instant dispossessory action against ReMax after an ongoing dispute over the amount of rent and other charges owed by ReMax under the Amended Lease. Village Square sought a writ of possession, monetary damages for breach of lease, interest, and reasonable attorney fees and expenses. ReMax filed an answer and counterclaim for set off based on the costs of certain repairs it allegedly had made to the premises. ReMax ultimately consented to the grant of the writ of possession but continued to dispute the amount of damages incurred by Village Square. On January 20, 2006, the trial court entered a consent order granting the writ of possession. ReMax vacated the premises on January 31, 2006. Thereafter, the trial court conducted a bench trial on the issue of damages for breach of the lease.

        At the bench trial, Village Square maintained that while ReMax had paid some of the charges it owed under the Amended Lease, ReMax still owed a portion of base rent from August 1, 2004 through October 31, 2005; unpaid CAM charges; monthly holdover rental fees for November 2005, December 2005, and January 2006; and late fees. Village Square also asserted that ReMax had failed to reimburse it for fines it had incurred for 26 false alarms caused by ReMax’s malfunctioning security system. In sum, Village Square claimed that it wasentitled to 82,415.98 in monetary damages. Additionally, Village Square claimed that it was entitled to 8,241.60 in reasonable attorney fees, an amount representing ten percent of the monetary damages sought.

        ReMax did not dispute the amount of base rent that it owed or that Village Square was entitled to reimbursement for the false alarm charges. But, ReMax disputed the assertion that it owed any late fees, holdover fees, or attorney fees, and it maintained that it had paid out 15,000 for repairs that should be set off against the unpaid CAM charges, since the repairs allegedly should have been performed by Village Square under the Amended Lease.

        Based on the testimony and documentary evidence presented at trial, the trial court entered judgment in favor of Village Square on its breach of lease claim. The trial court found that Village Square was entitled to the full amount it sought in unpaid base rent and false alarm charges, plus a portion of the late fees and holdover rent that it sought, for a total amount of 60,995.87 in damages. The trial court further found that Village Square was entitled to 3,000 in reasonable attorney fees. Finally, the trial court found that ReMax had failed to provide sufficient evidence as to the 15,000 it claimed to have spent on repairs, and, therefore, denied ReMax’s counterclaim for set off. ReMax subsequently filed a motion for new trial or, in the alternative, motion for reconsideration, which the trial court denied after hearing oral argument from the parties. This appeal then ensued.

        1. ReMax contends that the trial court erred in denying its counterclaim for set off. “[I]n a bench trial, the trial court sits as the trier of fact and its findings cannot be set aside unless they are clearly erroneous; therefore, the [trial court's denial of the counterclaim] must be affirmed if there is any evidence to support it.” (Citation omitted.) Smith v. Smith, 281 Ga. 380, 383(1), 637 S.E.2d 662 (2006). Here, there was ample support for the trial court’s finding that ReMax had failed to establish that it had paid out 15,000 for repairs that allegedly should have been paid by Village Square under the Amended Lease.

        As the trial court noted, and as the record reflects, ReMax attempted to establish its counterclaim solely through the testimony of its chief operating officer, who testified generally that he “[could] recall about 15,000.000 worth of different expenditures that [ReMax] made.” ReMax failed to present any more specific testimony or evidence detailing the individual repair expenditures, the necessity for the expenditures, the date of the expenditures, or the nature of the expenditures to show that they should have instead been paid by Village Square. ReMax offered no invoices, statements, estimates, or any other documentary evidence explaining or describing the alleged repairs with greater specificity. Furthermore, the Amended Lease provided that ReMax must “at once report in writing to [Village Square] any defective conditions known to [ReMax] which [Village Square] is required to repair,” but ReMax failed to present any evidence that it fulfilled this reporting obligation. Given this record, the trial court committed no clear error in denying ReMax’s counterclaim for set off. See generally Habel v. Tavormina, 266 Ga.App. 613, 618(3), 597 S.E.2d 645 (2004) (the factfinder at trial is “the sole and exclusive judge[] of the weight and credit given the evidence,” and “[a]s long as there is some evidence to support the verdict,” it will not be overturned) (citation omitted).

        2. ReMax next contends that the trial court erred in awarding attorney fees to Village Square. According to ReMax, the fees award was improper and unreasonable because the provision of the Amended Lease authorizing attorney fees is “unduly adhesive”; Village Square allegedly was not the prevailing party in the litigation; and the provision is unconscionable and in violation of OCGA § 13-8-2(b).1 We are unpersuaded.

        ReMax’s argument that the attorney fees provision is unenforceable as “unduly adhesive” is without merit. The Amended Lease, which the evidence reflects was negotiated between two business entities over several months, is not a contract of adhesion, “which has been defined as a standardized contract offered on a `take it or leave it’ basis and under such conditions that a consumer cannot obtain the desired product or service except by acquiescing in the form contract.” (Citation omitted.) Walton Elec. Membership Corp. v. Snyder, 226 Ga.App. 673, 678(2), n. 6, 487 S.E.2d 613 (1997), aff’d, 270 Ga. 62508 S.E.2d 167 (1998). And, in any event, the fact that a contract is adhesive does not, standing alone, render the contract unenforceable. Mathis v. Orkin Exterminating Co., 254 Ga.App. 335, 337(3), 562 S.E.2d 213 (2002) (pointing out that “contracts of adhesion are enforceable in Georgia, even though they are strictly construed against the drafter”) (citation omitted).

         ReMax also contends that the award of attorney fees was unreasonable because Village Square did not recover all of the damages it sought and thus should not be considered the prevailing party in the litigation. We disagree. Village Square recovered approximately three-fourths of the total amount of damages it sought, as well as significant nonmonetary relief, namely, a writ of possession. In contrast, ReMax lost on its counterclaim and recovered nothing. Under these circumstances, the trial court plainly was entitled to conclude that Village Square was the prevailing party. See, e.g., Dan J. Sheehan Co. v. McCrory Constr. Co., 284 Ga.App. 159, 162(1), 643 S.E.2d 546 (2007) (“[A] plaintiff prevails when actual relief on the merits materially alters the legal relationship between the parties by modifying the defendant’s behavior in any way that directly benefits the plaintiff.”) (citation and punctuation omitted); Discovery Point Franchising v. Miller, 234 Ga.App. 68, 73-74(5), 505 S.E.2d 822 (1998) (party that recovered damages was prevailing party); Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822, 824-825(2), 363 S.E.2d 31 (1987)(landlord who was awarded possession of the premises in a dispossessory action was the prevailing party).

        Finally, ReMax argues that the attorney fees provision is unconscionable and violates the restriction upon exculpatory clauses imposed by OCGA § 13-8-2(b). These arguments are waived on appeal because they were never raised before or ruled upon by the trial court. See Davis v. Whitford Properties, 282 Ga.App. 143, 145(1), 637 S.E.2d 849 (2006); City of Cairo v. Hightower Consulting Engineers, 278 Ga.App. 721, 725-726(1), 629 S.E.2d 518 (2006) (waiver of argument that contract provision was unenforceable under OCGA § 13-8-2(b)); McLeod v. Robbins Assn., 260 Ga.App. 347, 348(1), 579 S.E.2d 748 (2003) (waiver of argument that contract provision was unconscionable). Nevertheless, we note that ReMax’s arguments are predicated on the false premise that the attorney fees provision would entitle Village Square to recover attorney fees even if it was found to be the party at fault for breach of the Amended Lease. A separate provision of the Amended Lease entitled “Indemnity” specifically provides that “reasonable attorney[ ] fees” need not be paid to Village Square if the breach of the Amended Lease was “caused by the negligence of [Village Square], its agents or employees.” Hence, the Amended Lease, when read as whole, makes clear that Village Square could recover attorney fees only if it was not the party at fault for the breach. See generally Ga. &c. Mut. Ins. Co. v. Ray, 148 Ga.App. 85, 86, 251 S.E.2d 34 (1978) (this Court “will look to the whole contract in arriving at the construction of any part”) (citation omitted).

        3. Village Square has moved for sanctions for frivolous appeal under OCGA § 5-6-6. While we ultimately have found no merit to this appeal, we cannot conclude that ReMax has pursued it for purposes [286 Ga. App. 331] of delay only. Village Square’s motion thus is denied. See Ellis v. Stanford, 256 Ga.App. 294, 298(7), 568 S.E.2d 157 (2002).

        Judgment affirmed.

        BLACKBURN, P.J., and RUFFIN, J., concur.

—————

Notes:

1. OCGA § 13-8-2(b) provides in part:

        A covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable. . . .

        The General Assembly recently enacted legislation amending OCGA § 13-8-2(b), but the amendments did not become effective until July 1, 2007. See Ga. House Bill No. 136 (May 18, 2007).

—————

Mar 12 14

Continuing Legal Education notes – Managing the Existential Data Breach (Lexis Webinar)

by merlin

Managing the Existential Data Breach (Lexis Webinar CLE)

 March 12, 2014

John Kropf

  • Senior Counsel, Privacy and Information Governance (formerly with Reed Elsevier)

 

The Foundation: A Comprehensive Set of Controls and Procedures:

1.         Organizational Commitment to Data Privacy

2.         Personal Data Inventory:

  • Where does data reside?
  • Who has custody and control?
  • How sensitive is the information?
  • Applicable legal standards (what about data subject to EU regulations, AsiaPAC stuff, etc.)
  1. Documented Data Privacy Policies (ex. Website privacy policy)
  2. Risk assessment and mitigation (does the organization conduct regular assessment and mitigation of the data)
  3. Documented program to regularly train employees in policies and procedures
  4. Breach incident management program (builds processes and assigns responsibilities for dealing with data breaches)
  5. Service provider management (what can be shared with outside third parties and what can’t?)
  6. External communication – dedicated line of communication to ensure immediate knowledge of incidents
  7. Oversight and review (complete plan: who checks it, and what standards govern?

10. Regularly assess and revise as needed

 

CLE:  SPze9o

 

David Katz

  • Partner and Head of Privacy and Information Security Practice Group (Nelson Mullins Riley & Scarborough)

 

Have a plan (ex. Who is responsible for responding to what, and how); be prepared to quickly gather the facts for analysis on notification obligations.

  • Assemble outside experts
  • Determine scope of investigation
  • Determine applicability of Attorney-Client privilege
  • Be prepared to: communicate, and make a record

 

Proactive versus Reactive Risk Management:

World of budgets versus “get me out of trouble no matter what it costs”

 

Involve outside counsel in the risk management preparation to preserve the privilege.

 

BE PREPARED TO EXPLAIN YOUR ACTIONS!

  • Ex. Why you did what you did, when you did, etc.
  • There needs to be an internal script within the company for communication with employees, customers, etc.

 

PRACTICE THE PLAN – if you delay, it could be a very expensive mistake in the long run.

 

Notification Obligations

  • 46 States (+ Puerto Rico) have statutes addressing data breaches and confidential info (ex. SSN, credit card numbers, debit numbers, etc.)
  • 17 States permit a PRIVATE CAUSE OF ACTION
  • 7 States require notification within a certain time frame, etc.
  • 3 States trigger notice by access alone
  • These standards are the kind of thing that have to be done for each State!!!

 

 

Internal communications: Need to speak with one voice consistently throughout the organization.

 

Oliver Brew, CIPP/US, CIPM

  • Vice President, Specialty Casualty (Liberty International Underwriters)

 

Standard insurance:           DOESN’T TYPICALLY COVER DATA BREACHES (viewed as intentional crime)

 

First Party Coverage

  • Includes breach notification coverage
  • What about loss of access to online service (business interruption)

 

Third Party Coverage

  • Breach liability – civil, punitive
  • Public Relations

 

 

 

Application Process:

  • Broker makes a risk assessment (including nature of risks and stakeholders involved)
  • Application itself
  • Obtaining quotations (finding the insurance providers; far more now than there were a decade ago, but only multiplies for low risk)
  • Finalize terms
  • Bind coverage

 

In the event of an “incident”, when should client notify insurer?

  • Point of breach?
  • Point of loss?
  • When other people become aware?

 

What about deliberate or malicious acts (ex. Rogue employee insiders)?

What about contract indemnification issues?

 

Adam Miller (CA Supervising Deputy Attorney General, Privacy Protection and Enforcement Unit)

  • CA “Safeguards” Law: Business that maintains info about CA resident must maintain/implement reasonable mechanisms to protect it
  • Person who conducts business in CA using computer database has to disclose if a breach occur, within a reasonable time (ASAP)
  • Remember the “safe harbor” provision – data must be encrypted for it to apply

 

Too much focus on attorney-client privilege as a means to HIDE documents; instead, try honesty and a good plan.

 

2nd CLE:

Gi9iQ

 

From the Q&A:

Cloud services – MUST ensure that service is trustworthy

Practice good data hygiene (delete date you don’t need)

Protect passwords, etc.

It costs money to do it right

Discovery: Anything you are creating is potentially Discoverable, so use the privilege when it is applicable, and more frequently when litigation becomes “reasonably likely”

 

 

 

 

 

 

Mar 8 14

Why Georgia can’t be sued in federal court

by merlin

Section 50-21-23 sets out the limited waiver of the State of Georgia of its “sovereign immunity”.  This term is defined under the heading “governmental immunity” as “n. the doctrine from English common law that no governmental body can be sued unless it gives permission. This protection resulted in terrible injustices, since public hospitals, government drivers and other employees could be negligent with impunity (free) from judgment. The Federal Tort Claims Act and state waivers of immunity (with specific claims systems) have negated this rule, which stemmed from the days when kings set prerogatives.” At http://dictionary.law.com/Default.aspx?selected=824.  Essentially, no “sovereign” can be sued unless they permit themselves to be sued, and then only where and when they permit themselves to be sued.  Therefore, even a relatively egregious and horrific act by a State might go unremedied as long as the conditions to right it aren’t present:

 

§ 50-21-23. Limited waiver of sovereign immunity

  • (a)  The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.
  • (b)  The state waives its sovereign immunity only to the extent and in the manner provided in this article and only with respect to actions brought in the courts of the State of Georgia. The state does not waive any immunity with respect to actions brought in the courts of the United States.

 

 

§ 50-21-24 sets out the exceptions to the State’s waiver of sovereign immunity.  As you can read, these exceptions are very, very limited:

 

The state shall have no liability for losses resulting from:

 

 

(1) An act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance, whether or not such statute, regulation, rule, or ordinance is valid;

 

 

(2) The exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused;

 

 

(3) The assessment or collection of any tax or the detention of any goods or merchandise by any law enforcement officer;

 

 

(4) Legislative, judicial, quasi-judicial, or prosecutorial action or inaction;

 

 

(5) Administrative action or inaction of a legislative, quasi-legislative, judicial, or quasi-judicial nature;

 

 

(6) Civil disturbance, riot, insurrection, or rebellion or the failure to provide, or the method of providing, law enforcement, police, or fire protection;

 

 

(7) Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights;

 

 

(8) Inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety;

 

 

(9) Licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization;

 

 

 

(10) The plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design;

 

 

(11) Financing regulatory activities, including, but not limited to, examinations, inspections, audits, or other financial oversight activities;

 

 

(12) Activities of the Georgia National Guard when engaged in state or federal training or duty, but this exception does not apply to vehicular accidents; or

 

 

(13) Any failure or malfunction occurring before December 31, 2005, which is caused directly or indirectly by the failure of computer software or any device containing a computer processor to accurately or properly recognize, calculate, display, sort, or otherwise process dates or times, if the failure or malfunction causing the loss was unforeseeable or if the failure or malfunction causing the loss was foreseeable but the plan or design or both for identifying and preventing the failure or malfunction was prepared in substantial compliance with generally accepted computer and information system design standards in effect at the time of the preparation of the plan or design.

 

 

 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (Copy citation)

Supreme Court of the United States

February 22, 1983, Argued ; January 23, 1984, Decided

No. 81-2101

Reporter: 465 U.S. 89 | 104 S. Ct. 900 | 79 L. Ed. 2d 67 | 1984 U.S. LEXIS 4 | 52 U.S.L.W. 4155

PENNHURST STATE SCHOOL AND HOSPITAL ET AL. v. HALDERMAN ET AL.

Subsequent History:

Reargued October 3, 1983.

Prior History:

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

Disposition:

673 F.2d 647, reversed and remanded.

Core Terms

law, claim, state law, sovereign, state official, authority, constitutional, jurisdiction, violated, acts, sovereign immunity, federal court, doctrine, question, relief, dissent, basis, decision, appeal, statute, barred, state-law, immunity, pendent, power, rule, order, injunctive relief, part, principle

Case Summary

Procedural Posture

Petitioners, state institutions for the mentally handicapped and state officials, sought review of a decision of the United States Court of Appeals for the Third Circuit in favor of respondent patients, which ordered petitioners to conform their conduct to state law regarding patient care. Petitioners contended, among other things, that the lower court’s decision was prohibited by the Eleventh Amendment.

Overview

Petitioners challenged the decision of the federal appellate court in favor of respondent patients, affirming a district court judgment that ordered petitioners to conform their conduct to a state law on patient care. The Supreme Court reversed, holding that federal courts lacked jurisdiction under U.S. Const. amend. XI to enjoin petitioners’ actions on the basis of a state law. The record showed that the officials acted in good faith; thus, any state law violation was caused by the state itself in not having fulfilled its legislative promises. Federal courts had no jurisdiction because the relief was sought was against the state. The Court held that federal courts did not have pendent jurisdiction over respondents’ claims because pendent jurisdiction could not override the Eleventh Amendment. Federal courts had to examine each claim and determine if their jurisdiction was barred by the amendment. Policy considerations could not override the constitutional limitation on the federal judiciary to adjudicate suits against respondents. Federal courts also had no jurisdiction over the claims against a county because the relief sought ran to the state.

Outcome

The Supreme Court reversed the appellate court’s judgment and held that federal courts lacked jurisdiction, pursuant to U.S. Const. amend. XI, to order petitioners to conform their conduct to state law on patient care. Respondents’ claims were against the state, therefore, the federal judiciary had no jurisdiction.

LexisNexis® HeadnotesHide

Civil Procedure > … > Justiciability > Case & Controversy Requirements > General Overview
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Constitutional Law > The Judiciary > Jurisdiction > General Overview

HN1 U.S. Const. art. III, § 2 provides that the federal judicial power extends, inter alia, to controversies between a State and citizens of another State.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN2 See U.S. Const. amend. XI.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN3 That a state may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a state without consent given: not one brought by citizens of another state, or by citizens or subjects of a foreign state, because of U.S. Const. amend. XI; and not even one brought by its own citizens, because of the fundamental rule of which the Eleventh Amendment is but an exemplification.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview
Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > StateImmunity

HN4 A sovereign’s immunity may be waived, and the United States Supreme Court consistently has held that a state may consent to suit against it in federal court. The Court has insisted, however, that the state’s consent be unequivocally expressed.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview
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HN5 A state’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN6 A state’s waiver of sovereign immunity in its own courts is not a waiver of theEleventh Amendment immunity in the federal courts.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN7 In the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview
Civil Procedure > Parties > Real Party in Interest > General Overview

HN8 The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest. The general rule is that relief sought nominally against a state officer is in fact against the sovereign if the decree would operate against the latter. And, as when the state itself is named as the defendant, a suit against state officials that is in fact a suit against a state is barred regardless of whether it seeks damages or injunctive relief.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN9 The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the government from acting, or to compel it to act.  Shepardize - Narrow by this Headnote

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HN10 A state officer may be said to act ultra vires only when he acts without any authority whatever.  Shepardize - Narrow by this Headnote

Governments > State & Territorial Governments > Employees & Officials

HN11 An ultra vires claim rests on the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN12 A suit challenging the constitutionality of a state official’s action is not one against the State.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN13 When a plaintiff sues a state official alleging a violation of federal law, the federal court may award an injunction that governs the official’s future conduct, but not one that awards retroactive monetary relief.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN14 Where the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN15 The Young and Edelman doctrines are inapplicable in a suit against state officials on the basis of state law.  Shepardize - Narrow by this Headnote

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HN16 It has been said, in a very special sense, that, as a matter of agency law, a principal may never lawfully authorize the commission of a tort by his agent. But that statement, in its usual context, is only a way of saying that an agent’s liability for torts committed by him cannot be avoided by pleading the direction or authorization of his principal. The agent is himself liable whether or not he has been authorized or even directed to commit the tort. This, of course, does not mean that the principal is not liable nor that the tortious action may not be regarded as the action of the principal.  Shepardize- Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN17 A federal suit against state officials on the basis of state law contravenes theEleventh Amendment when the relief sought and ordered has an impact directly on the state itself.  Shepardize - Narrow by this Headnote

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Constitutional Law > … > Subject Matter Jurisdiction > Supplemental Jurisdiction > Pendent Jurisdiction

HN18 Pendent jurisdiction is a judge-made doctrine of expediency and efficiency derived from the general U.S. Const. art. III language conferring power to hear all cases arising under federal law or between diverse parties. The Eleventh Amendment should not be construed to apply with less force to this implied form of jurisdiction than it does to the explicitly granted power to hear federal claims.  Shepardize - Narrow by this Headnote

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Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview

HN19 Neither pendent jurisdiction nor any other basis of jurisdiction may override theEleventh Amendment. A federal court must examine each claim in a case to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview
Governments > Federal Government > Claims By & Against

HN20 Considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a state.  Shepardize - Narrow by this Headnote

Civil Procedure > … > Federal & State Interrelationships > State Sovereign Immunity > General Overview
Governments > Local Governments > Claims By & Against
Governments > Local Governments > Employees & Officials

HN21 A suit against officials of a county or other governmental entity is barred if the relief obtained runs against the state.  Shepardize - Narrow by this Headnote

Lawyers’ Edition DisplayHide

Decision

Eleventh Amendment held to bar federal-court jurisdiction of state-law injunctive suit against officials.

Summary

In a class action by a resident of a Pennsylvania state institution for the care of the mentally retarded against state and county officials, alleging that conditions at the institution violated the class members’ federal constitutional and statutory rights and a Pennsylvania statute, the United States District Court for the Eastern District of Pennsylvania granted injunctive relief on the ground that the conditions violated the residents’ federal constitutional rights, the federal Rehabilitation Act, and a state statute (446 F Supp 1295). The United States Court of Appeals for the Third Circuit affirmed most of the District Court’s judgment, grounding its decision on 42 USCS 6010 (612 F2d 84). After the Supreme Court reversed on the ground that 42 USCS 6010 does not create any substantive rights (451 US 1, 67 L Ed 2d 694, 101 S Ct 1531), the Court of Appeals affirmed its prior judgment in its entirety, relying solely on the state statute (673 F2d 647).

On certiorari, the United States Supreme Court reversed and remanded for consideration of the extent, if any, that the judgment could be sustained on federal constitutional or statutory grounds. In an opinion by Powell, J., expressing the views of Burger, Ch. J., and White, Rehnquist, and O’Connor, JJ., it was held that a federal court lacks jurisdiction of a suit for injunctive relief against state officials on the basis of state law, because such an action contravenes the Eleventh Amendment.

Brennan, J., dissenting, declared that the Eleventh Amendment bars federal court suits against states only by citizens of other states.

Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ., dissented on the ground that a state’s sovereign immunity does not prevent a federal court from enjoining conduct that the state itself has prohibited.

Headnotes

POSSESSIONS §93  > suit — immunity –
LEdHN[1A] [1A]LEdHN[1B] [1B]LEdHN[1C] [1C]

A federal court lacks jurisdiction of a suit for injunctive relief against state officials on the basis of state law, because such an action contravenes the Eleventh Amendment. (BrennanStevens, Marshall, and Blackmun, JJ., dissented from this holding.)

POSSESSIONS §88  > immunity — federal jurisdiction –
LEdHN[2] [2]

By virtue of the Eleventh Amendment, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Article III of the Constitution.

POSSESSIONS §91  > immunity — assertion –
LEdHN[3] [3]

The Eleventh Amendment’s embodiment of the principle of sovereign immunity as a constitutional limitation deprives federal courts of any jurisdiction to entertain claims by private parties against states, and thus may be raised at any point in a proceeding.

POSSESSIONS §89  > consent to be sued –
LEdHN[4] [4]

A sovereign’s immunity from suit may be waived, and a state may consent to suit against it in federal court, but the state’s consent must be unequivocally expressed.

POSSESSIONS §88  > immunity — waiver –
LEdHN[5] [5]

Although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, an unequivocal expression of congressional intent is required to overturn the constitutionally guaranteed immunityof the several states.

POSSESSIONS §89  > consent to suit — court –
LEdHN[6] [6]

A state’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.

POSSESSIONS §89  > consent to suit — federal court –
LEdHN[7A] [7A]LEdHN[7B] [7B]

A state’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.

POSSESSIONS §87  > immunity from suit –
LEdHN[8] [8]

An unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state. (Brennan J., dissented from this holding.)

POSSESSIONS §88  > immunity — department — relief –
LEdHN[9] [9]

In the absence of consent, a suit in which a state or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment, regardless of the nature of the relief sought.

POSSESSIONS §93  > suit against officer –
LEdHN[10] [10]

The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest.

POSSESSIONS §93  >  STATES §107.5  > suit against officer –
LEdHN[11] [11]

Relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.

POSSESSIONS §93  >  STATES §99  > suit against sovereign — test –
LEdHN[12A] [12A]LEdHN[12B] [12B]

A suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the government from acting, or compel it to act.

POSSESSIONS §93  > suit against officer — ultra vires acts –
LEdHN[13A] [13A]LEdHN[13B] [13B]

A state officer may be said to act ultra vires, for the purpose of determining whether a suit against the officer is against the state, only when he acts without any authority whatever; an ultra vires claim thus rests on the officer’s lack of delegated power, a claim of error in the exercise of that power being insufficient.

POSSESSIONS §88 > immunity — relief sought –
LEdHN[14] [14]

As when the state itself is named as the defendant, a suit against state officials that is in fact a suit against a state is barred regardless of whether it seeks damages or injunctive relief.

POSSESSIONS §93  > immunity — suit against official –
LEdHN[15] [15]

A suit challenging the constitutionality of a state official’s action is not one against the state within the meaning of the Eleventh Amendment immunity of a state from suit.

POSSESSIONS §89  > immunity from suit — waiver –
LEdHN[16A] [16A]LEdHN[16B] [16B]

A state does not waive its immunity from suit in federal court where at the time suit is filed, suits against the state are permitted only when expressly authorized by the legislature and there is no statutory provision expressly waiving the state’s Eleventh Amendment immunity, and at the time of decision a state statute expressly states that nothing in its subchapter governing sovereign immunity shall be construed to waive the state’s immunity from suit in federal courts guaranteed by the Eleventh Amendment.

POSSESSIONS §93  > immunity — United States plaintiff –
LEdHN[17A] [17A]LEdHN[17B] [17B]

The presence of the United States as a plaintiff in a suit against a state official does not remove the Eleventh Amendment’s applicability to private plaintiffs’ claims against the state official.

POSSESSIONS §87  > immunity — United States plaintiff –
LEdHN[18A] [18A]LEdHN[18B] [18B]

The Eleventh Amendment does not bar the United States from suing a state in federal court.

POSSESSIONS §87  > immunity — United States presence –
LEdHN[19A] [19A]LEdHN[19B] [19B]

The United States’ presence in a suit against a state for any purpose does not eliminate the state’s immunity for all purposes.

POSSESSIONS §87  > immunity — relief –
LEdHN[20A] [20A]LEdHN[20B] [20B]

That a federal court can award injunctive relief to the United States on federal constitutional claims against a state does not mean that the court can order the state to pay damages to other plaintiffs.

PARTIES §26  > representative suits — standing — United States –
LEdHN[21A] [21A]LEdHN[21B] [21B]

The United States does not have standing to assert the state-law claim of third parties in a suit against a state.

POSSESSIONS §92  > suits against officers — injunction –
LEdHN[22A] [22A]LEdHN[22B] [22B]

A finding that state officials have acted in good faith and therefore are immune from damages does not affect whether an injunction might be issued against them by a court possessed of jurisdiction.

STATES §14  > jurisdiction — constitutional amendments –
LEdHN[23A] [23A]LEdHN[23B] [23B]

Article III of the Constitution confers no jurisdiction on the Supreme Court to strip an explicit constitutional amendment of its substantive meaning.

STATES §3  > state law — enforcement –
LEdHN[24A] [24A]LEdHN[24B] [24B]

Although the Supreme Court is vested with the constitutional duty to vindicate the supreme authority of the United States, there is no corresponding mandate to enforce state law.

POSSESSIONS §93  > state officials — immunity –
LEdHN[25] [25]

A federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when the relief sought and ordered has an impact directly on the state itself.

COURTS §240  > federal courts — pendent jurisdiction –
LEdHN[26] [26]

When a federal court obtains jurisdiction over a federal claim, it may adjudicate other related claims over which the court otherwise would not have jurisdiction.

COURTS §240  > pendent claims — decision –
LEdHN[27] [27]

A federal court may resolve a case solely on the basis of a pendent state-law claim, and in fact usually should do so in order to avoid federal constitutional questions.

COURTS §774  > precedent — jurisdiction — sub silentio –
LEdHN[28] [28]

When questions of jurisdiction have been passed on in prior decisions sub silentio, the Supreme Court is not bound when a subsequent case finally brings the jurisdictional issue before it.

POSSESSIONS §88  > Eleventh Amendment — jurisdiction –
LEdHN[29] [29]

The Eleventh Amendment is an explicit limitation on the judicial power of the United States, and deprives a federal court of power to decide certain claims against states that otherwise are within the scope of Article III’s grant of jurisdiction.

RIGHTS §34  >  POSSESSIONS §93  > jurisdiction –
LEdHN[30] [30]

If a lawsuit against state officials under 42 USCS 1983 alleges a constitutional claim, the federal court is barred from awarding damages against the state treasury even though the claim arises under the Constitution.

RIGHTS §33  >  POSSESSIONS §88  > jurisdiction –
LEdHN[31] [31]

If an action under 42 USCS 1983 alleging a constitutional claim is brought directly against a state, the Eleventh Amendment bars a federal court from granting any relief on that claim.

POSSESSIONS §88  > Eleventh Amendment — jurisdiction –
LEdHN[32] [32]

The Eleventh Amendment is a specific constitutional bar against hearing even federal claims that otherwise are within the jurisdiction of federal courts.

POSSESSIONS §88  > pendent claims –
LEdHN[33] [33]

The Eleventh Amendment’s bar of suits against states applies to state-law pendent claims as well as federal claims.

POSSESSIONS §88  > Eleventh Amendment — jurisdiction –
LEdHN[34] [34]

Neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.

POSSESSIONS §92  > state officers — jurisdiction –
LEdHN[35] [35]

A suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court.

RIGHTS §33  > tax challenge –
LEdHN[36] [36]

Challenges to the validity of state tax systems under 42 USCS 1983 must be brought in state court.

POSSESSIONS §93  > county officials –
LEdHN[37] [37]

The Eleventh Amendment bars a claim against county officials where the judgment cannot be sustained on the basis of the state-law obligations of the county officials and any relief granted against the county officials on the basis of the state statute would be partial and incomplete at best.

Syllabus

Respondent Halderman, a resident of petitioner Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded, brought a class action in Federal District Court against Pennhurst, certain of its officials, the Pennsylvania Department of Public Welfare, and various state and county officials (also petitioners). It was alleged that conditions at Pennhurst violated various federal constitutional and statutory rights of the class members as well as their rights under the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act). Ultimately, the District Court awarded injunctive relief based in part on the MH/MR Act, which was held to provide a right to adequate habilitation. The Court of Appeals affirmed, holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded, and rejecting petitioners’ argument that the Eleventh Amendmentbarred a federal court from considering this pendent state-law claim. The court reasoned that since that Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, citing Ex parte Young, 209 U.S. 123, the same result obtained with respect to a pendent state-law claim.

Held: The Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law. Pp. 97-124.

(a) The principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III of the Constitution. The Eleventh Amendment bars a suit against state officials when the State is the real, substantial party in interest, regardless of whether the suit seeks damages or injunctive relief. The Court in Ex parte Young, supra, recognized an important exception to this general rule: a suit challenging the federal constitutionality of a state official’s action is not one against the State. Pp. 97-103.

(b) In Edelman v. Jordan, 415 U.S. 651, this Court recognized that the need to promote the supremacy of federal law that is the basis of Young must be accommodated to the constitutional immunity of the States. Thus, the Court declined to extend the Youngdoctrine to encompass retroactive relief, for to do so would effectively eliminate the States’ constitutional immunity. Edelman‘s distinction between prospective and retroactive relief fulfilled Young‘s underlying purpose of vindicating the supreme authority of federal law while at the same time preserving to an important degree the States’ constitutionalimmunity. But this need to reconcile competing interests is wholly absent when a plaintiff alleges that a state official has violated state law. In such a case the entire basis for the doctrine of Young and Edelman disappears. A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. When a federal court instructs state officials on how to conform their conduct to state law, this conflicts directly with the principles of federalism that underlie the Eleventh Amendment. Pp. 103-106.

(c) The dissenters’ view is that an allegation that official conduct is contrary to a state statute would suffice to override the State’s protection from injunctive relief under theEleventh Amendment because such conduct is ultra vires the official’s authority. This view rests on fiction, is wrong on the law, and would emasculate the Eleventh Amendment. At least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacity will not suffice to override the sovereign immunity of the State where the relief effectively is against it. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682. Under the dissenters’ view, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. Pp. 106-117.

(d) The principle that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment applies as well to state-law claims brought into federal court under pendent jurisdiction. Pp. 117-121.

(e) While it may be that applying the Eleventh Amendment to pendent state-law claims results in federal claims being brought in state court or in bifurcation of claims, such considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a State. Pp. 121-123.

(f) The judgment below cannot be sustained on the basis of the state-law obligation of petitioner county officials, since any relief granted against these officials on the basis of the MH/MR Act would be partial and incomplete at best. Such an ineffective enforcement of state law would not appear to serve the purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction. Pp. 123-124.

Counsel: H. Bartow Farr III and Allen C. Warshaw reargued the cause for petitioners. With them on the briefs were Thomas M. KittredgeJoel I. KleinLeRoy S. Zimmerman, Robert B. Hoffman, Debra K. Wallet, Alan J. Davis, and Mark A. Aronchick.

David Ferleger reargued the cause and filed a brief for respondents Halderman et al.Thomas K. Gilhool reargued the cause for respondents Pennsylvania Association for Retarded Citizens et al. With him on the brief were Frank J. Laski and Michael Churchill. Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Assistant Attorneys General Cooper and Wilkinson, Brian K. Landsberg, and Frank Allen filed a brief for the United States.*

Judges: POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE,REHNQUIST, and O’CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 125. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 126.

Opinion by: POWELL

Opinion

 [91]  JUSTICE POWELL delivered the opinion of the Court.

LEdHN[1A] [1A]This case presents the question whether a federal court may award injunctive relief against state officials on the basis of state law.

 [92]  I

This litigation, here for the second time, concerns the conditions of care at petitioner Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981). Although the litigation’s history is set forth in detail in our prior opinion, see id., at 5-10, it is necessary for purposes of this decision to review that history.

This suit originally was brought in 1974 by respondent Terri Lee Halderman, a resident of Pennhurst, in the District Court for the Eastern District of Pennsylvania. Ultimately, plaintiffs included a class consisting of all persons who were or might become residents of Pennhurst; the Pennsylvania Association for Retarded Citizens (PARC); and the United States. Defendants were Pennhurst and various Pennhurst officials; the Pennsylvania Department of Public Welfare and several of its officials; and various county commissioners, county mental retardation administrators, and other officials of five Pennsylvania counties surrounding Pennhurst. Respondents’ amended complaint charged that conditions at Pennhurst violated the class members’ rights under the Eighth and Fourteenth Amendments; § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U. S. C. § 794; the Developmentally Disabled Assistance and Bill of Rights Act, 89 Stat. 496, 42 U. S. C. § 6001et seq.; and the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act), Pa. Stat. Ann., Tit. 50, §§ 4101-4704 (Purdon 1969 and Supp. 1983-1984). Both damages and injunctive relief were sought.

In 1977, following a lengthy trial, the District Court rendered its decision. Halderman v.Pennhurst State School and Hospital, 446 F.Supp. 1295. As noted in our prior opinion, the court’s findings were undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate [93]  for the ‘habilitation’ of the retarded. Indeed, the court found that the physicial, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” 451 U.S., at 7 (footnote omitted). The District Court held that these conditions violated each resident’s right to “minimally adequate habilitation” under the Due Process Clause and the MH/MR Act, see 446 F.Supp., at 1314-1318, 1322-1323; “freedom from harm” under theEighth and Fourteenth Amendments, see id., at 1320-1321; and “nondiscriminatory habilitation” under the Equal Protection Clause and § 504 of the Rehabilitation Act, see id., at 1321-1324. Furthermore, the court found that “due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual’s habilitative needs.” Id., at 1319 (emphasis added).After concluding that the large size of Pennhurst prevented it from providing the necessary habilitation in the least restrictive environment, the court ordered that “immediate steps be taken to remove the retarded residents from Pennhurst.” Id., at 1325. Petitioners were ordered “to provide suitable community living arrangements” for the class members, id., at 1326, and the court appointed a Special Master “with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders of the Court.” Ibid1

The Court of Appeals for the Third Circuit affirmed most of the District Court’s judgment.Halderman v. Pennhurst State School and Hospital, 612 F.2d 84 (1979) (en banc). It agreed that respondents had a right to habilitation in the least restrictive environment, but it grounded this right solely on the “bill of rights” provision in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. § 6010. See 612 F.2d, at 95-100, 104-107. The court did  [94]  not consider the constitutional issues or § 504 of the Rehabilitation Act, and while it affirmed the District Court’s holding that the MH/MR Act provides a right to adequate habilitation, see id., at 100-103, the court did not decide whether that state right encompassed a right to treatment in the least restrictive setting.

On the question of remedy, the Court of Appeals affirmed except as to the District Court’s order that Pennhurst be closed. The court observed that some patients would be unable to adjust to life outside an institution, and it determined that none of the legal provisions relied on by respondents precluded institutionalization. Id., at 114-115. It therefore remanded for “individual determinations by the [District Court], or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient,” guided by “a presumption in favor of placing individuals in [community living arrangements].” Ibid2

On remand the District Court established detailed procedures for determining the proper residential placement for each patient. A team consisting of the patient, his parents or guardian, and his case manager must establish an individual habilitation plan providing for habilitation of the patient in a designated community living arrangement. The plan is subject to review by the Special Master. A second master, called the Hearing Master, is available to conduct hearings, upon request by the resident, his parents, or his advocate, on the question whether the services of Pennhurst would be more beneficial to the resident than the community living arrangement provided in the resident’s plan. The Hearing Master then determines where the patient should reside,  [95]  subject to possible review by the District Court. See App. 123a-134a (Order of Apr. 24, 1980). 3

This Court reversed the judgment of the Court of Appeals, finding that 42 U. S. C. § 6010did not create any substantive rights. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981). We remanded the case to the Court of Appeals to determine if the remedial order could be supported on the basis of state law, the Constitution, or § 504 of the Rehabilitation Act. See id., at 314 We also remanded for consideration of whether any relief was available under other provisions of the Developmentally Disabled Assistance and Bill of Rights Act. See id., at 27-30 (discussing 42 U. S. C. §§ 6011(a)6063(b)(5) (1976 ed., Supp. V)).

On remand the Court of Appeals affirmed its prior judgment in its entirety. 673 F.2d 647 (1982) (en banc). It determined that in a recent decision the Supreme Court of Pennsylvania had “spoken definitively” in holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded.Id., at 651 (citing In re Schmidt, 494 Pa. 86, 429 A. 2d 631 (1981)). The Court of Appeals concluded that this state statute fully supported its prior judgment, and therefore did not [96]  reach the remaining issues of federal law. It also rejected petitioners’ argument that the Eleventh Amendment barred a federal court from considering this pendent state-law claim. The court noted that the Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, see 673 F.2d, at 656 (citing Ex parte Young, 209 U.S. 123 (1908)), and concluded that the same result obtained with respect to a pendent state-law claim. It reasoned that because Silerv. Louisville & Nashville R. Co., 213 U.S. 175 (1909), an important case in the development of the doctrine of pendent jurisdiction, also involved state officials, “there cannot be . . . anEleventh Amendment exception to that rule.” 673 F.2d, at 658. 5 Finally, the court rejected petitioners’ argument that it should have abstained from deciding the state-law claim under principles of comity, see id., at 659-660, and refused to consider petitioners’ objections to the District Court’s use of a Special Master, see id., at 651, and n. 10. Three judges dissented in part, arguing that under principles of federalism and comity the establishment of a Special Master to supervise compliance was an abuse of discretion. Seeid., at 662 (Seitz, C. J., joined by Hunter, J., dissenting in part); ibid. (Garth, J., concurring in part and dissenting as to relief). See also id., at 661 (Aldisert, J., concurring) (seriously questioning the propriety of the order appointing the Special  [97]  Master, but concluding that a retroactive reversal of that order would be meaningless). 6

We granted certiorari, 457 U.S. 1131 (1982), and now reverse and remand.

II

Petitioners raise three challenges to the judgment of the Court of Appeals: (i) the Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law; (ii) the doctrine of comity prohibited the District Court from issuing its injunctive relief; and (iii) the District Court abused its discretion in appointing two Masters to supervise the decisions of state officials in implementing state law. We need not reach the latter two issues, for we find the Eleventh Amendment challenge dispositive.

A

Article III, § 2, HN1 of the Constitution provides that the federal judicial power extends,inter alia, to controversies “between a State and Citizens of another State.” Relying on this language, this Court in 1793 assumed original jurisdiction over a suit brought by a citizen of South Carolina against the State of Georgia. Chisholm v. Georgia, 2 Dall. 419 (1793). The decision “created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.” Monaco v. Mississippi, 292 U.S. 313, 325 (1934). The Amendment provides:

HN2 “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

 [98]  LEdHN[2] [2] LEdHN[3] [3]The Amendment’s language overruled the particular result in Chisholm, but this Court has recognized that its greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III. Thus, in Hans v. Louisiana, 134 U.S. 1 (1890), the Court held that, despite the limited terms of the Eleventh Amendment, a federal court could not entertain a suit brought by a citizen against his own State. After reviewing the constitutional debates concerning the scope of Art. III, the Court determined that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Id., at 15. See Monaco v. Mississippi, supra, at 322-3237 In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III:

HN3 “That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court thatthe entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of theEleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but  [99]  an exemplification.” Ex parte State of New York, 256 U.S. 490, 497 (1921) (emphasis added). 8

LEdHN[4] [4] LEdHN[5] [5] LEdHN[6] [6] LEdHN[7A] [7A]A HN4 sovereign’simmunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court. See, e. g., Clark v. Barnard, 108 U.S. 436, 447 (1883). We have insisted, however, that the State’s consent be unequivocally expressed. See, e. g.,Edelman v. Jordan, 415 U.S. 651, 673 (1974). Similarly, although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, see Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), we have required an unequivocal expression of congressional intent to “overturn the constitutionally guaranteed immunity of the several States.” Quern v. Jordan, 440 U.S. 332, 342 (1979)(holding that 42 U. S. C. § 1983 does not override States’ Eleventh Amendment immunity).Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. HN5 A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued. 9 As JUSTICE MARSHALL well has noted, “[because]  [100]  of the problems of federalism inherent in making onesovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.” Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 294 (1973)(concurring in result). 10 Accordingly, in deciding this case we must be guided by “[the] principles of federalism that inform Eleventh Amendment doctrine.” Hutto v. Finney, 437 U.S. 678, 691 (1978).

B

LEdHN[8] [8] LEdHN[9] [9]This Court’s decisions thus establish that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Employees, supra, at 280. There may be a question, however, whether a particular suit in fact is a suit against a State. It is clear, of course, that HN7 in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. See, e. g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U.S. 147 (1981) (per curiam); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam). This jurisdictional bar applies regardless of the nature of the relief sought. See, e. g., Missouri v. Fiske, 290 U.S. 18, 27 (1933) (“Expressly applying  [101]  to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State”).

LEdHN[10] [10] LEdHN[11] [11] LEdHN[12A] [12A] LEdHN[13A] [13A]LEdHN[14] [14]When the suit is brought only against state officials, a question arises as to whether that suit is a suit against the State itself. Although prior decisions of this Court have not been entirely consistent on this issue, certain principles are well established. HN8 The Eleventh Amendment bars a suit against state officials when “the state is the real, substantial party in interest.” Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464 (1945). See, e. g., In re Ayers, 123 U.S. 443, 487-492 (1887);Louisiana v. Jumel, 107 U.S. 711, 720-723, 727-728 (1883). Thus, “[the] general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per curiam)11And, as when the State itself is named as the  [102]  defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief. See Cory v. White, 457 U.S. 85, 91 (1982).

LEdHN[15] [15]The Court has recognized an important exception to this general rule:HN12 a suit challenging the constitutionality of a state official’s action is not one against the State. This was the holding in Ex parte Young, 209 U.S. 123 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment. This Court held that theEleventh Amendment did not prohibit issuance of this injunction. The theory of the case was that an unconstitutional enactment is “void” and therefore does not “impart to [the officer] any immunity from responsibility to the supreme authority of the United States.” Id., at 160. Since the State could not authorize the action, the officer was “stripped of his official or representative character and [was] subjected in his person to the consequences of his individual conduct.” Ibid.

While the rule permitting suits alleging conduct contrary to “the supreme authority of the United States” has survived, the theory of Young has not been provided an expansive interpretation. Thus, in Edelman v. Jordan, 415 U.S. 651 (1974), the Court emphasized that the Eleventh Amendment bars some forms of injunctive relief against state officials for violation of federal law. Id., at 666-667. In particular, Edelman held that HN13 when a plaintiff sues a state official alleging a violation of federal law, the federal court  [103] may award an injunction that governs the official’s future conduct, but not one that awards retroactive monetary relief. Under the theory of Young, such a suit 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.

III

LEdHN[16A] [16A] LEdHN[17A] [17A] LEdHN[18A] [18A] LEdHN[19A] [19A]LEdHN[20A] [20A] LEdHN[21A] [21A]With these principles in mind, we now turn to the question whether the claim that petitioners violated state law in carrying out their official duties at Pennhurst is one against the State and therefore barred by the Eleventh Amendment. Respondents advance two principal arguments in support of the judgment below. 12 First, they contend that under the doctrine of Edelman v. Jordan, supra, the suit is not against  [104]  the State because the courts below ordered only prospective injunctive relief. Second, they assert that the state-law claim properly was decided under the doctrine of pendent jurisdiction. Respondents rely on decisions of this Court awarding relief against state officials on the basis of a pendent state-law claim. See, e. g., Siler v.Louisville & Nashville R. Co., 213 U.S., at 193.

A

We first address the contention that respondents’ state-law claim is not barred by theEleventh Amendment because it seeks only prospective relief as defined in Edelman v.Jordan, supra. The Court of Appeals held that if the judgment below rested on federal law, it could be entered against petitioner state officials under the doctrine established inEdelman and Young even though the prospective financial burden was substantial and ongoing. 13 See 673 F.2d, at 656. The court assumed, and respondents assert, that this reasoning applies as well when the official acts in violation of state law. This argument misconstrues the basis of the doctrine established in Young and Edelman.

As discussed above, the injunction in Young was justified, notwithstanding the obvious impact on the State itself, on the view that sovereign immunity does not apply because an official who acts unconstitutionally is “stripped of his official or representative character,” Young, 209 U.S., at 160. This  [105]  rationale, of course, created the “well-recognized irony” that an official’s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh AmendmentFlorida Dept. of State v.Treasure Salvors, Inc., 458 U.S. 670, 685 (1982) (opinion of STEVENS, J.). Nonetheless, theYoung doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to “the supreme authority of the United States.” Young, supra, at 160. As JUSTICE BRENNAN has observed, “Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendmentwith the effective supremacy of rights and powers secured elsewhere in the Constitution.”Perez v. Ledesma, 401 U.S. 82, 106 (1971) (concurring in part and dissenting in part). Our decisions repeatedly have emphasized that the Young doctrine rests on the need to promote the vindication of federal rights. See, e. g., Quern v. Jordan, 440 U.S., at 337;Scheuer v. Rhodes, 416 U.S. 232, 237 (1974)Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299, 304 (1952).

The Court also has recognized, however, that the need to promote the supremacy of federal law must be accommodated to the constitutional immunity of the States. This is the significance of Edelman v. Jordan, supra. We recognized that the prospective relief authorized by Young ”has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely a shield, for those whom they were designed to protect.”415 U.S., at 664. But we declined to extend the fiction of Young to encompass retroactive relief, for to do so would effectively eliminate the constitutional immunity of the States. Accordingly, we concluded that although the difference between permissible and impermissible relief “will not in many instances be that between day and night,” 415 U.S., at 667, an award of retroactive relief necessarily “‘[falls] afoul of the Eleventh Amendment [106]  if that basic constitutional provision is to be conceived of as having any present force.’” Id., at 665 (quoting Rothstein v. Wyman, 467 F.2d 226, 237 (CA2 1972) (McGowan, J., sitting by designation), cert. denied, 411 U.S. 921 (1973)). In sum, Edelman‘s distinction between prospective and retroactive relief fulfills the underlying purpose of Ex parte Youngwhile at the same time preserving to an important degree the constitutional immunity of the States.

LEdHN[1B] [1B]This need to reconcile competing interests is wholly absent, however, when a plaintiff alleges that a state official has violated state law. In such a case the entire basis for the doctrine of Young and Edelman disappears. A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that HN15Young and Edelman are inapplicable in a suit against state officials on the basis of state law.

B

The contrary view of JUSTICE STEVENS‘ dissent rests on fiction, is wrong on the law, and, most important, would emasculate the Eleventh Amendment14 Under his view, an allegation that official conduct is contrary to a state statute would suffice to override the State’s protection under that Amendment. The theory is that such conduct is contrary to the official’s “instructions,” and thus ultra vires his authority.  [107]  Accordingly, official action based on a reasonable interpretation of any statute might, if the interpretation turned out to be erroneous, 15 provide the basis for injunctive relief against the actors in their official capacities. In this case, where officials of a major state department, clearly acting within the scope of their authority, were found not to have improved conditions in a state institution adequately under state law, the dissent’s result would be that the State itself has forfeited its constitutionally provided immunity.

LEdHN[22A] [22A] LEdHN[23A] [23A] LEdHN[24A] [24A] The theory is out of touch with reality. The dissent does not dispute that the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought. See supra, at 101;post, at 146, n. 29. According to the dissent, the relief sought and ordered here — which in effect was that a major state institution be closed and smaller state institutions be created and expansively funded — did not operate against the State. This view would make the law a pretense. No other court or judge in the 10-year history of this litigation has advanced this theory. And the dissent’s underlying view that the named defendants here were acting beyond and contrary to their authority cannot be reconciled with reality — or with the record. The District Court in this case held that the individual defendants “acted in the utmost good faith . . . within the sphere of their official responsibilities,” and therefore were entitled to immunity from damages. 446 F.Supp., at 1324 (emphasis added). The named defendants had nothing to gain personally from their conduct; they were not found to have acted willfully or even negligently. See ibid. The court expressly noted that the individual defendants “apparently took every means available to them to reduce the incidents of abuse and injury, but were  [108]  constantly faced with staff shortages.” Ibid. It also found “that the individual defendants are dedicated professionals in the field of retardation who were given very little with which to accomplish the habilitation of the retarded at Pennhurst.” Ibid16 As a result, all the relief ordered by the courts below was institutional and official in character. To the extent  [109]  there was a violation of state law in this case, it is a case of the State itself not fulfilling its legislative promises. 17

The dissent bases its view on numerous cases from the turn of the century and earlier. These cases do not provide the support the dissent claims to find. Many are simply miscited. For example, with perhaps one exception, 18 none of its Eleventh Amendmentcases can be said to hold that injunctive relief could be ordered against state officials for failing to carry out their duties under state statutes. 19 And  [110]  the federal sovereignimmunity cases the dissent relies on for analogy, while far from uniform, make clear that suit may not be predicated on violations of state statutes that command purely discretionary duties. 20 Since it cannot be doubted  [111]  that the statutes at issue here gave petitioners broad discretion in operating Pennhurst, see n. 11, supra; see also 446 F.Supp., at 1324, the conduct alleged in this case would not be ultra vires even under the standards of the dissent’s cases. 21

Thus, while there is language in the early cases that advances the authority-stripping theory advocated by the dissent, this theory had never been pressed as far as JUSTICESTEVENS would do in this case. And when the expansive approach  [112]  of the dissent was advanced, this Court plainly and explicitly rejected it. In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the Court was faced with the argument that an allegation that a Government official committed a tort sufficed to distinguish the official from the sovereign. Therefore, the argument went, a suit for an injunction to remedy the injury would not be against the sovereign. The Court rejected the argument, noting that it would make the doctrine of sovereign immunity superfluous. A plaintiff would need only to “claim an invasion of his legal rights” in order to override sovereign immunityId., at 693.In the Court’s view, the argument “[confused] the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action.” Id., at 692-693. The dissent’s theory suffers a like confusion. 22 Under the dissent’s view, a plaintiff would need only to claim a denial of rights protected or provided by statute in order to override sovereignimmunity. Except in rare cases it would make the constitutional doctrine of sovereignimmunity a nullity.

 [113]  The crucial element of the dissent’s theory was also the plaintiff’s central contention in Larson. It is that “[a] sovereign, like any other principal, cannot authorize its agent to violate the law,” so that when the agent does so he cannot be acting for thesovereign. Post, at 153; see also post, at 142, 148-149, 158; cf. Larson, supra, at 693-694(“It is argued . . . that the commission of a tort cannot be authorized by the sovereign. . . .It is on this contention that the respondent’s position fundamentally rests . . .”). It is a view of agency law that the Court in Larson explicitly rejected. 23 Larson thus made clear that, at least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief effectively is against it. 337 U.S., at 690, 69524 Any resulting disadvantage to the plaintiff was “[outweighed]” by “the necessity of permitting the Government  [114]  to carry out its functions unhampered by direct judicial intervention.”Id., at 704. If anything, this public need is even greater when questions of federalism are involved. See supra, at 99-10025

The dissent in Larson made many of the arguments advanced by JUSTICE STEVENS‘ dissent today, and asserted that many of the same cases were being overruled or ignored. [115]  See 337 U.S., at 723-728 (Frankfurter, J., dissenting). Those arguments were rejected, and the cases supporting them are moribund. Since Larson was decided in 1949,26 no opinion by any Member of this Court has cited the cases on which the dissent primarily relies for a proposition as broad as the language the dissent quotes. Many if not most of these cases have not been relied upon in an Eleventh Amendment context at all. Those that have been so cited have been relied upon only for propositions with which no one today quarrels. 27 The plain fact is that the dissent’s broad theory, if it ever was accepted to the full extent to which it is now pressed, has not been the law for at least a generation.

The reason is obvious. Under the dissent’s view of the ultra vires doctrine, the Eleventh Amendment would have force only in the rare case in which a plaintiff foolishly attempts to sue the State in its own name, or where he cannot produce some state statute that has been violated to his asserted injury. Thus, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. That result gives the dissent no pause presumably because of its view that the Eleventh Amendment and sovereign immunity ”‘undoubtedly [run] counter to modern democratic notions of the moral responsibility of the State.’” Post, at 164, n. 48 (quoting Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 59 (1944)(Frankfurter, J., dissenting)). This argument has not been adopted by this Court. See Great Northern Life Insurance Co. v. Read, supra, at 51 (“Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that asovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution”); Larson, 337 U.S., at 704 (“The Government, as representative of the community as a whole, cannot be stopped in its tracks . . .”). Moreover, the argument substantially misses the point with respect to Eleventh Amendment sovereignimmunity. As JUSTICE MARSHALL has observed, the Eleventh Amendment’s restriction on the federal judicial power is based in large part on “the problems of federalism inherent in making  [117]  one sovereign appear against its will in the courts of the other.” Employeesv. Missouri Dept. of Public Health and Welfare, 411 U.S., at 294 (concurring in result). The dissent totally rejects the Eleventh Amendment’s basis in federalism.

C

LEdHN[25] [25]The reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that HN17 a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when — as here — the relief sought and ordered has an impact directly on the State itself. In reaching a contrary conclusion, the Court of Appeals relied principally on a separate line of cases dealing with pendent jurisdiction. The crucial point for the Court of Appeals was that this Court has granted relief against state officials on the basis of a pendent state-law claim. See 673 F.2d, at 657-658.We therefore must consider the relationship between pendent jurisdiction and theEleventh Amendment.

LEdHN[26] [26] LEdHN[27] [27]This Court long has held generally that when a federal court obtains jurisdiction over a federal claim, it may adjudicate other related claims over which the court otherwise would not have jurisdiction. See, e. g., Mine Workers v.Gibbs, 383 U.S. 715, 726 (1966)Osborn v. Bank of United States, 9 Wheat. 738, 819-823 (1824). The Court also has held that a federal court may resolve a case solely on the basis of a pendent state-law claim, see Siler, 213 U.S., at 192-193, and that in fact the courtusually should do so in order to avoid federal constitutional questions, see id., at 193;Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“[If] a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter”).But pendent jurisdiction is a judge-made doctrine inferred from the general language of Art. III. The question presented is whether this doctrine  [118]  may be viewed as displacing the explicit limitation on federal jurisdiction contained in the Eleventh Amendment.

As the Court of Appeals noted, in Siler and subsequent cases concerning pendent jurisdiction, relief was granted against state officials on the basis of state-law claims that were pendent to federal constitutional claims. In none of these cases, however, did the Court so much as mention the Eleventh Amendment in connection with the state-law claim. Rather, the Court appears to have assumed that once jurisdiction was established over the federal-law claim, the doctrine of pendent jurisdiction would establish power to hear the state-law claims as well. The Court has not addressed whether that doctrine has a different scope when applied to suits against the State. This is illustrated by Greene v.Louisville & Interurban R. Co., 244 U.S. 499 (1917), in which the plaintiff railroads sued state officials, alleging that certain tax assessments were excessive under the Fourteenth Amendment. The Court first rejected the officials’ argument that the Eleventh Amendmentbarred the federal constitutional claim. It held that Ex parte Young applied to all allegations challenging the constitutionality of official action, regardless of whether the state statute under which the officials purported to act was constitutional or unconstitutional. See 244 U.S., at 507. Having determined that the Eleventh Amendment did not deprive the federal court of jurisdiction over the Fourteenth Amendment question, the Court declared that the court’s jurisdiction extended “to the determination of all questions involved in the case, including questions of state law, irrespective of the disposition that may be made of the federal question, or whether it be found necessary to decide it at all.” Id., at 508. The case then was decided solely on state-law grounds. Accord, Louisville & Nashville R. Co. v.Greene, 244 U.S. 522 (1917)28

 [119]  LEdHN[28] [28] These cases thus did not directly confront the question before us. “[When] questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” Hagans v. Lavine, 415 U.S. 528, 533, n. 5 (1974)29 We therefore view the question as an open one.

LEdHN[29] [29] LEdHN[30] [30] LEdHN[31] [31] LEdHN[32] [32]As noted, the implicit view of these cases seems to have been that once jurisdiction is established on the basis of a federal question, no further Eleventh Amendment inquiry is necessary with respect to other claims raised in the case. This is an erroneous view and contrary to the principles established in our Eleventh Amendment decisions. “The Eleventh Amendment is an explicit limitation of the judicial power of the United States.” Missouri v. Fiske, 290 U.S., at 25. It deprives a federal court of power to decide certain claims against States that otherwise would be within the  [120]  scope of Art. III’s grant of jurisdiction. For example, if a lawsuit against state officials under 42 U. S. C. § 1983 alleges a constitutional claim, the federal court is barred from awarding damages against the state treasury even though the claim arises under the Constitution. See Quern v. Jordan, 440 U.S. 332 (1979). Similarly, if a § 1983 action alleging a constitutional claim is brought directly against a State, theEleventh Amendment bars a federal court from granting any relief on that claim. SeeAlabama v. Pugh, 438 U.S. 781 (1978) (per curiam). The Amendment thus is a specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts. 30

LEdHN[33] [33]This constitutional bar applies to pendent claims as well. As noted above, HN18 pendent jurisdiction is a judge-made doctrine of expediency and efficiencyderived from the general Art. III language conferring power to hear all “cases” arising under federal law or between diverse parties. See Mine Workers v. Gibbs, 383 U.S., at 725.See also Hagans v. Lavine, supra, at 545 (terming pendent jurisdiction “a doctrine of discretion”). The Eleventh Amendment should not be construed to apply with less force to this implied form of jurisdiction than it does to the explicitly granted power to hear federal claims. The history of the adoption and development of the Amendment, see supra, at 97-100, confirms that it is an independent limitation on all exercises of Art. III power: “the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given,” Ex parte State of New York, 256 U.S., at 497. If we were to hold otherwise, a federal court could award damages against a State on the basis of a pendent claim. Our decision in  [121]  Edelmanv. Jordan makes clear that pendent jurisdiction does not permit such an evasion of theimmunity guaranteed by the Eleventh Amendment. We there held that “the District Court was correct in exercising pendent jurisdiction over [plaintiffs'] statutory claim,” 415 U.S., at 653, n. 1, but then concluded that the Eleventh Amendment barred an award of retroactive relief on the basis of that pendent claim. Id., at 678.

LEdHN[34] [34]In sum, contrary to the view implicit in decisions such as Greene v.Louisville & Interurban R. Co., 244 U.S. 499 (1917)HN19 neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment31 A federal court must examine each claim in a case to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment. We concluded above that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment. See supra, at 106. We now hold that this principle applies as well to state-law claims brought into federal court under pendent jurisdiction.

D

Respondents urge that application of the Eleventh Amendment to pendent state-law claims will have a disruptive effect on litigation against state officials. They argue that the “considerations of judicial economy, convenience, and fairness to litigants” that underlie pendent jurisdiction, see Gibbs, supra, at 726, counsel against a result that may cause litigants to split causes of action between state and federal courts. They also contend that the policy of avoiding unnecessary constitutional decisions will be contravened if plaintiffs choose to forgo their state-law claims and sue only in federal court or, alternatively, that the policy of Ex parte Young  [122]  will be hindered if plaintiffs choose to forgo their right to a federal forum and bring all of their claims in state court.

LEdHN[35] [35] LEdHN[36] [36]It may be that applying the Eleventh Amendment to pendent claims results in federal claims being brought in state court, or in bifurcation of claims. That is not uncommon in this area. Under Edelman v. Jordan, supra, a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court. Challenges to the validity of state tax systems under 42 U. S. C. § 1983 also must be brought in state court. Fair Assessment in Real Estate Assn., Inc. v.McNary, 454 U.S. 100 (1981). Under the abstention doctrine, unclear issues of state law commonly are split off and referred to the state courts. 32

 [123]  In any case, the answer to respondents’ assertions is that such HN20considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a State. See Missouri v. Fiske, 290 U.S., at 25-26 (“Considerations of convenience open no avenue of escape from the [Amendment's] restriction”). 33 That a litigant’s choice of forum is reduced “has long been understood to be a part of the tension inherent in our system of federalism.” Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S., at 298 (MARSHALL, J., concurring in result).

IV

LEdHN[37] [37]Respondents contend that, regardless of the applicability of theEleventh Amendment to their state claims against petitioner state officials, the judgment may still be upheld against petitioner county officials. We are not persuaded. Even assuming that these officials are not immune from suit challenging their actions under the MH/MR Act, 34 it is clear  [124]  that without the injunction against the state institutions and officials in this case, an order entered on state-law grounds necessarily would be limited. The relief substantially concerns Pennhurst, an arm of the State that is operated by state officials. Moreover, funding for the county mental retardation programs comes almost entirely from the State, see Pa. Stat. Ann., Tit. 50, §§ 4507-4509 (Purdon 1969 and Supp. 1983-1984), and the costs of the Masters have been borne by the State, see 446 F.Supp., at 1327. Finally, the MH/MR Act contemplates that the state and county officials will cooperate in operating mental retardation programs. See In re Schmidt, 494 Pa., at 95-96, 429 A. 2d, at 635-636. In short, the present judgment could not be sustained on the basis of the state-law obligations of petitioner county officials. Indeed, any relief granted against the county officials on the basis of the state statute would be partial and incomplete at best. Such an ineffective enforcement of state law would not appear to serve the purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction.

V

LEdHN[1C] [1C]The Court of Appeals upheld the judgment of the District Court solely on the basis of Pennsylvania’s MH/MR Act. We hold that these federal courts lacked jurisdiction to enjoin petitioner state institutions and state officials on the basis of  [125] this state law. The District Court also rested its decision on the Eighth and Fourteenth Amendments and § 504 of the Rehabilitation Act of 1973. See supra, at 93. On remand the Court of Appeals may consider to what extent, if any, the judgment may be sustained on these bases. 35 The court also may consider whether relief may be granted to respondents under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. §§ 60116063 (1976 ed. and Supp. V). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Dissent by: BRENNANSTEVENS

Dissent

JUSTICE BRENNAN, dissenting.

I fully agree with JUSTICE STEVENS‘ dissent. Nevertheless, I write separately to explain that in view of my continued belief that the Eleventh Amendment ”bars federal court suits against States only by citizens of other States,” Yeomans v. Kentucky, 423 U.S. 983, 984 (1975) (BRENNAN, J., dissenting), I would hold that petitioners are not entitled to invoke the protections of that Amendment in this federal-court suit by citizens of Pennsylvania. See Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 298 (1973)(BRENNAN, J., dissenting); Edelman v. Jordan, 415 U.S. 651, 687 (1974) (BRENNAN, J., dissenting). In my view, Hans v. Louisiana, 134 U.S. 1 (1890), upon which the Court today relies, ante, at 98, recognized that the Eleventh Amendment, by its terms, erects a limited constitutional barrier prohibiting suits against States by citizens of another State; the decision, however, “accords to nonconsenting States only a nonconstitutional immunityfrom suit by its own citizens. ” Employees v. Missouri Dept. of Public  [126]  Health and Welfare, supra, at 313 (BRENNAN, J., dissenting) (emphasis added). For scholarly discussions supporting this view, see Gibbons, The Eleventh Amendment and StateSovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1893-1894 (1983); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 538-540, and n. 88 (1978). To the extent that such nonconstitutionalsovereign immunity may apply to petitioners, I agree with JUSTICE STEVENS that since petitioners’ conduct was prohibited by state law, the protections of sovereign immunitydo not extend to them.

JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICEBLACKMUN join, dissenting.

This case has illuminated the character of an institution. The record demonstrates that the Pennhurst State School and Hospital has been operated in violation of state law. In 1977, after three years of litigation, the District Court entered detailed findings of fact that abundantly support that conclusion. In 1981, after four more years of litigation, this Court ordered the United States Court of Appeals for the Third Circuit to decide whether the law of Pennsylvania provides an independent and adequate ground which can support the District Court’s remedial order. The Court of Appeals, sitting en banc, unanimously concluded that it did. This Court does not disagree with that conclusion. Rather, it reverses the Court of Appeals because it did precisely what this Court ordered it to do; the only error committed by the Court of Appeals was its faithful obedience to this Court’s command.

This remarkable result is the product of an equally remarkable misapplication of the ancient doctrine of sovereign immunity. In a completely unprecedented holding, today the Court concludes that Pennsylvania’s sovereign immunity prevents a federal court from enjoining the conduct that Pennsylvania itself has prohibited. No rational view of the sovereignimmunity of the States supports this result. To the  [127]  contrary, the question whether a federal court may award injunctive relief on the basis of state law has been answered affirmatively by this Court many times in the past. Yet the Court repudiates at least 28 cases, spanning well over a century of this Court’s jurisprudence, proclaiming instead that federal courts have no power to enforce the will of the States by enjoining conduct because it violates state law. This new pronouncement will require the federal courts to decide federal constitutional questions despite the availability of state-law grounds for decision, a result inimical to sound principles of judicial restraint. Nothing in the Eleventh Amendment, the conception of state sovereignty it embodies, or the history of this institution, requires or justifies such a perverse result.

I

The conduct of petitioners that the Court attributes to the State of Pennsylvania in order to find it protected by the Eleventh Amendment is described in detail in the District Court’s findings. As noted in our prior opinion, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), and by the majority today, ante, at 92-93, those findings were undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the ‘habilitation’ of the retarded. Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” 451 U.S., at 7 (footnote omitted). The court concluded that Pennhurst was actually hazardous to its residents. 1 Organized programs of training or education  [128]  were inadequate or entirely unavailable, and programs of treatment or training were not developed for residents. When they visited Pennhurst, shocked parents of residents would find their children bruised, drugged, and unattended. These conditions often led to a deterioration in the condition of the residents after being placed in Pennhurst. Terri Lee Halderman, for example, was learning to talk when she entered Pennhurst; after residing there she lost her verbal skills. At every stage of this litigation, petitioners have conceded that Pennhurst fails to provide even minimally adequate habilitation for its residents. See Halderman v. Pennhurst State School and Hospital, 612 F.2d 84, 92-94 (CA3 1979) (en banc); 446 F.Supp. 1295, 1304 (ED Pa. 1977).

The District Court held that these conditions violated each resident’s rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U. S. C. § 794, and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., Tit. 50, §§ 4101-4704 (Purdon 1969 and Supp. 1983-1984) (MH/MR Act). The en banc Court of Appeals for the Third Circuit affirmed most of the District Court’s judgment, but it grounded its decision solely on the “bill of rights” provision in the Developmentally Disabled Assistance and Bill of Rights Act,42 U. S. C. § 6010. The court did not consider the constitutional issues or § 504 of the Rehabilitation Act. While it affirmed the District Court’s holding that the MH/MR Act provides a right to adequate habilitation, the court did not decide whether that state right justified all of the relief granted by the District Court.

Petitioners sought review by this Court, asserting that the Court of Appeals had erred in its construction of both federal and state statutes. This Court granted certiorari and reversed,  [129]  451 U.S. 1 (1981), holding that 42 U. S. C. § 6010 created no substantive rights. We did not accept respondents’ state-law contention, because there was a possibility that the Court of Appeals’ analysis of the state statute had been influenced by its erroneous reading of federal law. Concluding that it was “unclear whether state law provides an independent and adequate ground which can support the court’s remedial order,” 451 U.S., at 31, we “[remanded] the state-law issue for reconsideration in light of our decision here.” Ibid. In a footnote we declined to consider the effect of the Pennsylvania Supreme Court’s then recent decision, In re Schmidt, 494 Pa. 86, 429 A. 2d 631 (1981), on the state-law issues in the case, expressly stating that on remand the Court of Appeals could “consider the state-law issues in light of the Pennsylvania Supreme Court’s recent decision.” 451 U.S., at 31, n. 24.

On remand, 673 F.2d 647 (CA3 1982) (en banc), the Court of Appeals, noting that this Court had remanded for reconsideration of the state-law issue, examined the impact ofSchmidt2 According to the Court of Appeals, which was unanimous on this point, the State Supreme Court had “spoken definitively” on the duties of the State under the MH/MR Act, holding that the State was required to provide care to the mentally retarded in the “least restrictive environment.” 673 F.2d, at 651. Since the MH/MR Act fully justified the relief issued in the Court of Appeals’ prior judgment, the court reinstated its prior judgmenton the basis of petitioners’ violation of state law. 3

 [130]  Thus, the District Court found that petitioners have been operating the Pennhurst facility in a way that is forbidden by state law, by federal statute, and by the Federal Constitution. The en banc Court of Appeals for the Third Circuit unanimously concluded that state law provided a clear and adequate basis for upholding the District Court and that it was not necessary to address the federal questions decided by that court. That action conformed precisely to the directive issued by this Court when the case was here before. Petitioners urge this Court to make an unprecedented about-face, and to hold that theEleventh Amendment prohibited the Court of Appeals from doing what this Court ordered it to do when we instructed it to decide whether respondents were entitled to relief under state law. Of course, if petitioners are correct, then error was committed not by the Court of Appeals, which after all merely obeyed the instruction of this Court, but rather by this Court in 1981 when we ordered the Court of Appeals to consider the state-law issues in the case.

Petitioners’ position is utterly without support. The Eleventh Amendment and the doctrine of sovereign immunity it embodies have never been interpreted to deprive a court of jurisdiction to grant relief against government officials who are engaged in conduct that is forbidden by their sovereign. On the contrary, this Court has repeatedly and consistently exercised the power to enjoin state officials from violating state law. 4

II

The majority proceeds as if this Court has not had previous occasion to consider theEleventh Amendment argument made by petitioners, and contends that Ex parte Young, 209 U.S. 123 (1908), has no application to a suit seeking injunctive relief on the basis of state law. That is simply not the case. The Court rejected the argument that the Eleventh [131]  Amendment precludes injunctive relief on the basis of state law twice only two Terms ago. In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), four Justices concluded that a suit for possession of property in the hands of state officials was not barred by the Eleventh Amendment inasmuch as the State did not have even a colorable claim to the property under state law. See id., at 696-697 (opinion of STEVENS, J., joined by BURGER, C. J., and MARSHALL and BLACKMUN, JJ.). Four additional Justices accepted the proposition that if the state officers’ conduct had been in violation of a state statute, the Eleventh Amendment would not bar the action. Id., at 714 (WHITE, J., concurring in judgment in part and dissenting in part, joined by POWELLREHNQUIST, andO’CONNOR, JJ.). 5 And in just one short paragraph in Cory v. White, 457 U.S. 85 (1982),the Court thrice restated the settled rule that the Eleventh Amendment does not bar suits against state officers when they are “alleged to be acting against federal or state law.” 6These  [132]  are only the two most recent in an extraordinarily long line of cases.

By 1908, it was firmly established that conduct of state officials under color of office that is tortious as a matter of state law is not protected by the Eleventh Amendment. See Reaganv. Farmers’ Loan & Trust Co., 154 U.S. 362, 390-391 (1894)Poindexter v. Greenhow, 114 U.S. 270, 287 (1885)Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452 (1883).7 Cf. Belknap v. Schild, 161 U.S. 10, 18 (1896) (same rule adopted for sovereign immunityof the United States); Stanley v. Schwalby, 147 U.S. 508, 518-519 (1893) (same). 8 InHopkins v. Clemson Agricultural College, 221  [133]  U.S. 636 (1911), the Court explained the relationship of these cases to the doctrine of sovereign immunity.

“[Immunity] from suit is a high attribute of sovereignty — a prerogative of the State itself — which cannot be availed of by public agents when sued for their own torts. The Eleventh Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the State’s citizens. To grant them suchimmunity would be to create a privileged class free from liability for wrongs inflicted or injuries threatened. . . .

“. . . Besides, neither a State nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator. In such cases the law of agency has no application — the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction against the commission of acts causing irreparable injury.” Id., at 642-6439

 [134]  The principles that were decisive in these cases are not confined to actions under state tort law. They also apply to claims that state officers have violated state statutes. InJohnson v. Lankford, 245 U.S. 541 (1918), the Court reversed the dismissal of an action against the bank commissioner of Oklahoma and his surety to recover damages for the loss of plaintiff’s bank deposit, allegedly caused by the commissioner’s failure to safeguard the business and assets of the bank in negligent or willful disregard of his duties under applicable state statutes. The Court explained that the action was not one against the State.

“To answer it otherwise would be to assert, we think, that whatever an officer does, even in contravention of the laws of the State, is state action, identifies him with it and makes the redress sought against him a claim against the State and therefore prohibited by theEleventh Amendment. Surely an officer of a State may be delinquent without involving the State in delinquency, indeed, may injure the State by delinquency as well as some resident of the State, and be amenable to both.” Id., at 545.

Similarly, in Rolston v. Missouri Fund Commissioners, 120 U.S. 390 (1887), the Court rejected the argument that a suit to enjoin a state officer to comply with state law violated the Eleventh Amendment. The Court wrote: “Here the suit is to get a state officer to do what a statute requires of him. The litigation is with the officer, not the state.” Id., at 411.10

 [135]  Significantly, this rule was expressly reaffirmed in a case decided by this Court in the same Term as Ex parte Young and published in the same volume of the United States Reports.  [136]  The appellants in Scully v. Bird, 209 U.S. 481 (1908), brought a diversity suit seeking injunctive relief against the dairy and food commissioner of the State of Michigan, on the ground that “under cover of his office” he had maliciously engaged in a course of conduct designed to ruin plaintiffs’ business in the State. The Circuit Court dismissed the complaint on Eleventh Amendment grounds. On appeal, the plaintiffs contended that the Eleventh Amendment ”does not apply where a suit is brought against defendants who, claiming to act as officers of the State, and under color of a statute which is valid and constitutional, but wrongfully administered by them, commit, or threaten to commit, acts of wrong or injury to the rights and property of the plaintiff, or make such administration of the statute an illegal burden and exaction upon the plaintiff.” Ibid. This Court agreed. It noted that the complaint alleged action “in dereliction of duties enjoined by the statutes of the State,” and concluded that it was “manifest from this summary of the allegations of the bill that this is not a suit against the State.” Id., at 49011

Finally, in Greene v. Louisville & Interurban R. Co., 244 U.S. 499 (1917), and its companion cases, Louisville & Nashville R. Co. v. Greene, 244 U.S. 522 (1917)Illinois Central R. Co. v.Greene, 244 U.S. 555 (1917), the plaintiffs challenged the conduct of state officials under both federal and state law. The Court, citing, inter alia, Young and Clemson, held that theEleventh Amendment did not bar injunctive relief on the basis of state law, noting that the plaintiffs’ federal claim was sufficiently substantial to justify the exercise  [137]  of pendent jurisdiction over plaintiffs’ state-law claims, 12 and that since violations of federal and state law had been alleged, it was appropriate for the federal court to issue injunctive relief on the basis of state law without reaching the federal claims, despite the strictures of the Eleventh Amendment. In short, the Greene Court approved of precisely the methodology employed by the Court of Appeals in this case. 13

None of these cases contain only “implicit” or sub silentio holdings; all of them explicitly consider and reject the claim that the Eleventh Amendment prohibits federal courts from issuing injunctive relief based on state law. There is therefore no basis for the majority’s assertion that the issue presented by this case is an open one, ante, at 119. 14

 [138]  The Court tries to explain away these cases by arguing that the applicable state statutes gave petitioners such “broad discretion” over Pennhurst that their actions were not ultra vires, ante, at 110-111. The Court, however, does not dispute the Court of Appeals’ conclusion that these state statutes gave petitioners no discretion whatsoever to disregard their duties with respect to institutionalization of the retarded as they did. Petitioners acted outside of their lawful discretion every bit as much as did the government officials in the cases I have discussed, which hold that when an official commits an act prohibited by law, he acts beyond his authority and is not protected by sovereignimmunity15 After all, it is only common sense to conclude that States do not authorize their officers to violate their legal duties.

The Court also relies heavily on the fact that the District Court found petitioners immune from damages liability because they “‘acted in the utmost good faith . . . within the sphere of their official responsibilities,’” ante, at 107 (emphasis in original) (quoting 446 F.Supp., at 1324). This confuses two distinct concepts. An official can act in good faith and therefore be immune from damages liability despite the  [139]  fact that he has done that which the law prohibits, a point recognized as recently as Harlow v. Fitzgerald, 457 U.S. 800 (1982).Nevertheless, good-faith immunity from damages liability is irrelevant to the availability of injunctive relief. See Wood v. Strickland, 420 U.S. 308, 314-315, n. 6 (1975). The state officials acted in nothing less than good faith and within the sphere of their official responsibilities in asserting Florida’s claim to the treasure in Treasure Salvors; the same can be said for the bank commissioner’s actions in safeguarding bank deposits challenged in Johnson v. Lankford, the fund commissioner’s decision to sell property mortgaged to the State challenged in Rolston, and the state food and dairy commissioner’s decision to prosecute the appellant for violating the state food impurity Act challenged in Scully, to give just a few examples. Yet in each of these cases the state officers’ conduct was enjoined. Greene makes this point perfectly clear. There state officers did nothing more than carry out responsibilities clearly assigned to them by a statute. Their conduct was nevertheless enjoined because this Court held that their conduct violated the State Constitution, despite the fact that their reliance on a statute made it perfectly clear that their conduct was not only in good faith but reasonable. See Michigan v. DeFillippo, 443 U.S. 31 (1979). Until today the rule has been simple: conduct that exceeds the scope of an official’s lawful discretion is not conduct the sovereign has authorized and hence is subject to injunction. 16 Whether that conduct also gives rise to damages liability is an entirely separate question.

 [140]  III

On its face, the Eleventh Amendment applies only to suits against a State brought by citizens of other States and foreign nations. 17 This textual limitation upon the scope of the States’ immunity from suit in federal court was set aside in Hans v. Louisiana, 134 U.S. 1 (1890)Hans was a suit against the State of Louisiana, brought by a citizen of Louisiana seeking to recover interest on the State’s bonds. The Court stated that some of the arguments favoring sovereign immunity for the States made during the process of the Amendment’s ratification had become a part of the judicial scheme created by the Constitution. As a result, the Court concluded that the Constitution prohibited a suit by a citizen against his or her own State. When called upon to elaborate in Monaco v.Mississippi, 292 U.S. 313 (1934), the Court explained that the Eleventh Amendment did more than simply prohibit suits brought by citizens of one State against another State.Rather, it exemplified the broader and more ancient doctrine of sovereign immunity, which operates to  [141]  bar a suit brought by a citizen against his own State without its consent. 18

The Court has subsequently adhered to this interpretation of the Eleventh Amendment.For example, in Quern v. Jordan, 440 U.S. 332 (1979), the Court referred to the Eleventh Amendment as incorporating “the traditional sovereign immunity of the States.” Id., at 341. Similarly, in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court referred to “theEleventh Amendment, and the principle of state sovereignty which it embodies . . . .” Id., at 456. See also Nevada v. Hall, 440 U.S. 410, 438-441 (1979) (REHNQUIST, J., dissenting). 19Thus, under our cases it is the doctrine of sovereign immunity, rather than the text of the Amendment  [142]  itself, which is critical to the analysis of any Eleventh Amendmentproblem. 20

The doctrine of sovereign immunity developed in England, where it was thought that the King could not be sued. However, common-law courts, in applying the doctrine, traditionally distinguished between the King and his agents, on the theory that the King would never authorize unlawful conduct, and that therefore the unlawful acts of the King’s officers ought not to be treated as acts of the sovereign. See 1 W. Blackstone, Commentaries *244. As early as the 15th century, Holdsworth writes, servants of the King were held liable for their unlawful acts. See 3 W. Holdsworth, A History of English Law 388 (1903). During the 17th century, this rule of law was used extensively to curb the King’s authority. The King’s officers

“could do wrong, and if they committed wrongs, whether in the course of their employment or not, they could be made legally liable. The command or instruction of the king could not protect them. If the king really had given such commands or instructions, he must have been deceived.” 6 id., at 101 (footnote omitted).

In one famous case, it was held that although process would not issue against thesovereign himself, it could issue against his officers. ”[For] the warrant of no man, not even of the King himself, can excuse the doing of an illegal act.” Sands v. Child, 3 Lev. 351, 352, 83 Eng. Rep. 725, 726 (K. B. 1693). 21 By the 18th century, this rule of law was unquestioned.  [143]  See 10 Holdsworth, supra, at 650-652. And in the 19th century this view was taken by the court to be so well settled as not to require the citation of authority, see Feather v. Queen, 6 B. & S. 257, 295-297, 122 Eng. Rep. 1191, 1205-1206 (Q. B. 1865). 22

It was only natural, then, that this Court, in applying the principles of sovereign immunity, recognized the distinction between a suit against a State and one against its officer. 23For example, while the Court did inquire as to whether a suit was “in essence” against thesovereign, it soon became settled law that the Eleventh Amendment did not bar suits against state officials in their official capacities challenging unconstitutional conduct. SeeSmyth v. Ames, 169 U.S. 466, 518-519 (1898)Pennoyer v. McConnaughy, 140 U.S. 1, 10-12 (1891)Poindexter v. Greenhow, 114 U.S. 270, 288 (1885)24 This rule was reconciled withsovereign immunity  [144]  principles by use of the traditional rule that an action against an agent of the sovereign who had acted unlawfully was not considered to be against thesovereign. When an official acts pursuant to an unconstitutional statute, the Court reasoned, the absence of valid authority leaves the official ultra vires his authority, and thus a private actor stripped of his status as a representative of the sovereign. 25 In Exparte Young, 209 U.S. 123 (1908), the Court was merely restating a settled principle when it wrote:

“The Act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in itssovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Id., at 159-16026

 [145]  The majority states that the holding of Ex parte Young is limited to cases in which relief is provided on the basis of federal law, and that it rests entirely on the need to protect the supremacy of federal law. That position overlooks the foundation of the rule ofYoung as well Pennoyer v. McConnaughy and Young‘s other predecessors.

The Young Court distinguished between the State and its Attorney General because the latter, in violating the Constitution, had engaged in conduct the sovereign could not authorize. The pivotal consideration was not that the conduct violated federal law, since nothing in the jurisprudence of the Eleventh Amendment permits a suit against a sovereignmerely because federal law is at issue. 27 Indeed, at least since Hans v. Louisiana, 134 U.S. 1 (1890), the law has been settled that the Eleventh Amendment applies even though the State is accused of violating the Federal Constitution. In Hans the Court held that theEleventh Amendment applies to all cases within the jurisdiction of the federal courts including those brought to require compliance with federal law, and bars any suit where the State is the proper defendant under sovereign immunity principles. A long line of cases has endorsed that proposition, holding that irrespective  [146]  of the need to vindicate federal law a suit is barred by the Eleventh Amendment if the State is the proper defendant. 28 It was clear until today that “the State [is not] divested of its immunity ’on the mere ground that the case is one arising under the Constitution or laws of the United States.’” Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184, 186 (1964) (quotingHans, 134 U.S., at 10).

The pivotal consideration in Young was that it was not conduct of the sovereign that was at issue. 29 The rule that unlawful acts of an officer should not be attributed to thesovereign has deep roots in the history of sovereign immunity and makes Youngreconcilable with the principles of sovereign immunity found in the Eleventh Amendment,30 rather  [147]  than merely an unprincipled accommodation between federal and state interests that ignores the principles contained in the Eleventh Amendment.

This rule plainly applies to conduct of state officers in violation of state law. Young states that the significance of the charge of unconstitutional conduct is that it renders the state official’s conduct “simply an illegal act,” and hence the officer is not entitled to thesovereign’s immunity. Since a state officer’s conduct in violation of state law is certainly no less illegal than his violation of federal law, in either case the official, by committing an illegal act, is “stripped of his official or representative character.” For example, one ofYoung‘s predecessors held that a suit challenging an unconstitutional attempt by the Virginia Legislature to disavow a state contract was not barred by the Eleventh Amendment, reasoning that

“inasmuch as, by the Constitution of the United States, which is also the supreme law of Virginia, that contract, when made, became thereby unchangeable, irrepealable by the State, the subsequent act of January 26, 1882, and all other like acts, which deny the obligation of that contract and forbid its performance, are not the acts of the State of Virginia. The true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it. Whatever having that effect, if operative, has been attempted or done, is the work of its government acting without authority, in violation of its fundamental law, and must be looked upon, in all courts of justice, as if it were not and never had been. . . . The State of Virginia has done none of  [148]  these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands.” Poindexter v. Greenhow, 114 U.S., at 292-293 (emphasis supplied). 31

It is clear that the Court in Poindexter attached no significance to the fact that Virginia had been accused of violating federal and not its own law. 32 To the contrary, the Court treated the Federal Constitution as part of Virginia’s law, and concluded that the challenged action was not that of Virginia precisely because it violated Virginia’s law. The majority’s position turns the Young doctrine on its head – sovereign immunity did not bar actions challenging unconstitutional conduct by state officers since the Federal Constitution was also to be considered part of the State’s law — and since the State could not and would not authorize a violation of its own law, the officers’ conduct was considered individual  [149]  and not sovereign. No doubt the Courts that produced Poindexter andYoung would be shocked to discover that conduct authorized by state law but prohibited by federal law is not considered conduct attributable to the State for sovereign immunitypurposes, but conduct prohibited by state law is considered conduct attributable to the very State which prohibited that conduct. Indeed, in Tindal v. Wesley, 167 U.S. 204 (1899), the Court specifically found that it was impossible to distinguish between a suit challenging unconstitutional conduct of state officers and a suit challenging any other type of unlawful behavior:

“If a suit against officers of a State to enjoin them from enforcing an unconstitutional statute . . . be not one against the State, it is impossible to see how a suit against the individuals to recover the possession of property belonging to the plaintiff and illegally withheld by the defendants can be deemed a suit against the State.” Id., at 22233

These cases are based on the simple idea that an illegal act strips the official of his state-law shield, thereby depriving the official of the sovereign’s immunity. The majority criticizes this approach as being “out of touch with reality” because it ignores the practical impact of an injunction on the  [150]  State though directed at its officers. Ante, at 106-108. Yet that criticism cannot account for Young, since an injunction has the same effect on the State whether it is based on federal or state law. Indeed, the majority recognizes that injunctions approved by Young have an “obvious impact on the State itself,” ante, at 104. In the final analysis the distinction between the State and its officers, realistic or not, is one firmly embedded in the doctrine of sovereign immunity. It is that doctrine and not any theory of federal supremacy which the Framers placed in the Eleventh Amendment and which this Court therefore has a duty to respect.

It follows that the basis for the Young rule is present when the officer sued has violated the law of the sovereign; in all such cases the conduct is of a type that would not be permitted by the sovereign and hence is not attributable to the sovereign under traditionalsovereign immunity principles. In such a case, the sovereign’s interest lies with those who seek to enforce its laws, rather than those who have violated them.

“[Public] officials may become tort-feasors by exceeding the limits of their authority. And where they unlawfully seize or hold a citizen’s realty or chattels, recoverable by appropriate action at law or in equity . . . [the] dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld.” Land v. Dollar, 330 U.S. 731, 738 (1947)34

The majority’s position that the Eleventh Amendment does not permit federal courts to enjoin conduct that the sovereign State itself seeks to prohibit thus is inconsistent with both  [151]  the doctrine of sovereign immunity and the underlying respect for the integrity of state policy which the Eleventh Amendment protects. The issuance of injunctive relief which enforces state laws and policies, if anything, enhances federal courts’ respect for the sovereign prerogatives of the States. 35 The majority’s approach, which requires federal courts to ignore questions of state law and to rest their decisions on federal bases, will create more rather than less friction between the States and the federal judiciary.

Moreover, the majority’s rule has nothing to do with the basic reason the Eleventh Amendment was added to the Constitution. There is general agreement that the Amendment was passed because the States were fearful that federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin. 36 Entertaining a suit for injunctive relief based on state law implicates none of the concerns of the Framers. Since only injunctive relief is sought there is no threat to the state treasury of the type that concerned the Framers, see Milliken v. Bradley, 433 U.S. 267, 288-290 (1977)Edelmanv. Jordan, 415 U.S. 651, 667-668 (1974); and if the State wishes to avoid the federal injunction, it can easily do so simply by changing its law. The possibility of States left helpless in the face of disruptive federal decrees which led to the passage of the Eleventh [152]  Amendment simply is not presented by this case. Indeed, the Framers no doubt would have preferred federal courts to base their decisions on state law, which the State is then free to reexamine, rather than forcing courts to decide cases on federal grounds, leaving the litigation beyond state control.

In light of the preceding, it should come as no surprise that there is absolutely no authority for the majority’s position that the rule of Young is inapplicable to violations of state law. The only cases the majority cites, ante, at 105-106, for the proposition that Young is limited to the vindication of federal law do not consider the question whether Young permits injunctive relief on the basis of state law — in each of the cases the question was neither presented, briefed, argued, nor decided. 37 It is curious, to say the least, that the majority disapproves of reliance on cases in which the issue we face today was decided sub silentio, see ante, at 119, yet it is willing to rely on cases in which the issue was not decided at all. In fact, not only is there no precedent for the majority’s position, but, as I have demonstrated in Part II, supra, there is an avalanche of precedent squarely to the contrary. 38

 [153]  That the doctrine of sovereign immunity does not protect conduct which has been prohibited by the sovereign is clearly demonstrated by the case on which petitioners chiefly rely, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). The Larsonopinion teaches that the actions of state officials are not attributable to the State — are ultra vires — in two different types of situations: (1) when the official is engaged in conduct that the sovereign has not authorized, and (2) when he has engaged in conduct that thesovereign has forbidden. A sovereign, like any other principal, cannot authorize its agent to violate the law. When an agent does so, his actions are considered ultra vires and he is liable for his own conduct under the law of agency. Both types of ultra vires conduct are clearly identified in Larson.

“There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. If the War Assets Administrator had completed a sale of his personal home, he presumably could be enjoined from later conveying it to a third person. On a similar theory, where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing  [154]  the business which the sovereignhas empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.It is important to note that in such cases the relief can be granted, without impleading thesovereign, only because of the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.” Id., at 689-690 (emphasis supplied).

Larson thus clearly indicates that the immunity determination depends upon the merits of the plaintiff’s claim. The same approach is employed by Young – the plaintiff can overcomethe state official’s immunity only by succeeding on the merits of its claim of unconstitutional conduct.

Following the two-track analysis of Larson, the cases considering the question whether the state official is entitled to the sovereign’s immunity can be grouped into two categories. In cases like Larson, Malone v. Bowdoin, 369 U.S. 643 (1962), and Florida Dept. of State v.Treasure Salvors, Inc., 458 U.S. 670 (1982), which usually involve the State functioning in its proprietary capacity, the ultra vires issue can be resolved solely by reference to the law of agency. Since there is no specific limitation on the powers of the officers other than the general limitations on their authority, the only question that need be asked is whether they have acted completely beyond their authority. But when the State has placed specific limitations on the manner in which state officials may perform their duties, as it often does in regulatory or other administrative contexts such as were considered in Scully v. Bird, 209 U.S. 481 (1908), and Johnson v.  [155]  Lankford, 245 U.S. 541 (1918), the ultra vires inquiry also involves the question whether the officials acted in a way that state law forbids. No sovereign would authorize its officials to violate its own law, and if the official does so, then Larson indicates that his conduct is ultra vires and not protected bysovereign immunity.

Larson confirms that the Court’s disposition of this case in 1981 — ordering the Court of Appeals to consider respondents’ state-law claims — was fully harmonious with establishedsovereign immunity principles. The jurisdiction of the federal court was established by a federal claim; 39 the Court of Appeals therefore had jurisdiction to resolve the case and to grant injunctive relief on either federal or state grounds. Respondents pleaded a specific statutory limitation on the way in which petitioners were entitled to run Pennhurst. The District Court and the Court of Appeals have both found that petitioners operated Pennhurst in a way that the sovereign has forbidden. Specifically, both courts concluded that petitioners placed residents in Pennhurst without any consideration at all of the limitations on institutional confinement that are found in state law, and that they failed to create community living programs that are mandated by state law. In short, there can be no dispute that petitioners ran Pennhurst in a way that the sovereign had  [156] forbidden. Under the second track of the Larson analysis, petitioners were acting ultra vires because they were acting in a way that the sovereign, by statute, had forbidden. 40

 [157]  Petitioners readily concede, both in their brief and at oral argument, that theEleventh Amendment does not bar a suit against state officers who have acted ultra vires. The majority makes a similar concession, ante, at 101-102, n. 11. Yet both ignore the fact that the cases, and most especially Larson, set out a two-step analysis for ultra vires conduct — conduct that is completely beyond the scope of the officer’s authority, or conduct that the sovereign has forbidden. In fact, the majority goes so far as to quote the passage from Larson indicating that a state official acts ultra vires when he completely lacks power delegated from the State, ante, at 101, n. 11. That quotation ignores sentences immediately preceding and following the quoted passage stating in terms that where an official violates a statutory prohibition, he acts ultra vires and is not protected bysovereign immunity. This omission is understandable, since petitioners’ conduct in this case clearly falls into the category of conduct the sovereign has specifically forbidden by statute. Petitioners were told by Pennsylvania how to run Pennhurst, and there is no dispute that they disobeyed their instructions. Yet without explanation, the Court repudiates the two-track analysis of Larson and holds that sovereign immunity extends to conduct the sovereign has statutorily prohibited. 41 Thus, contrary  [158]  to the Court’s assertion, Larson is in conflict with the result reached today. 42

In sum, a century and a half of this Court’s Eleventh Amendment jurisprudence has established the following. A suit alleging that the official had acted within his authority but in a manner contrary to state statutes was not barred because the Eleventh Amendmentprohibits suits against States; it does not bar suits against state officials for actions not permitted by the State under its own law. The sovereign could not and would not authorize its officers to violate its own law; hence an action against a state officer seeking redress for conduct not permitted by state law is a suit against the officer, not thesovereign. Ex parte Young concluded in as explicit a fashion as possible that unconstitutional action by state officials is not action by the State even if it purports to be authorized by state law, because the Federal Constitution strikes down the state-law shield. In the tort cases, if the plaintiff proves his case, there is by definition no state-law defense to shield the defendant. Similarly, when the state officer violates a state statute, thesovereign has by definition erected no shield against liability. These precedents make clear that there is no foundation for the contention that the majority embraces — that Ex parte Young authorizes injunctive relief against state officials only on the basis of federal law. To the contrary, Young is as clear as a  [159]  bell: the Eleventh Amendment does not apply where there is no state-law shield. That simple principle should control this case.

IV

The majority’s decision in this case is especially unwise in that it overrules a long line of cases in order to reach a result that is at odds with the usual practices of this Court. In one of the most respected opinions ever written by a Member of this Court, JusticeBrandeis wrote:

“The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

. . . . .

“. . . The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191.” Ashwander v. TVA, 297 U.S. 288, 346-347 (1936)(concurring opinion).

The Siler case, cited with approval by Justice Brandeis in Ashwander, employed a remarkably similar approach to that used by the Court of Appeals in this case. A privately owned railroad corporation brought suit against the members of the railroad commission of Kentucky to enjoin the enforcement of a rate schedule promulgated by the commission. The Federal Circuit Court found that the schedule violated the plaintiff’s federal constitutional rights and granted relief.  [160]  This Court affirmed, but it refused to decide the constitutional question because injunctive relief against the state officials was adequately supported by state law. The Court held that the plaintiff’s claim that the schedule violated the Federal Constitution was sufficient to justify the assertion of federal jurisdiction over the case, but then declined to reach the federal question, deciding the case on the basis of state law instead:

“Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.” Siler v.Louisville & Nashville R. Co., 213 U.S. 175, 193 (1909)43

The Siler principle has been applied on numerous occasions; when a suit against state officials has presented both federal constitutional questions and issues of state law, the Court has upheld injunctive relief on state-law grounds. See, e. g., Lee v. Bickell, 292 U.S. 415, 425 (1934)Glenn v. Field Packing Co., 290 U.S. 177, 178 (1933)Davis v. Wallace, 257 U.S. 478, 482-485 (1922)Louisville & Nashville R. Co. v. Greene, 244 U.S., at 527Greene v.Louisville & Interurban R. Co., 244 U.S., at 508, 512-51444

 [161]  In Hagans v. Lavine, 415 U.S. 528 (1974), the Court quoted from the Siler opinion and noted that the “Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims.” 415 U.S., at 546. It added:

“Numerous decisions of this Court have stated the general proposition endorsed in Siler – that a federal court properly vested with jurisdiction may pass on the state or local law question without deciding the federal constitutional issues — and have then proceeded to dispose  [162]  of the case solely on the nonfederal ground. See, e. g., Hillsborough v.Cromwell, 326 U.S. 620, 629-630 (1946)Waggoner Estate v. Wichita County, 273 U.S. 113, 116-119 (1927)Chicago G.W.R. Co. v. Kendall, 266 U.S. 94 (1924)United Gas Co. v. Railroad Comm’n, 278 U.S. 300, 308 (1929)Risty v. Chicago, R.I. & P.R. Co., 270 U.S. 378, 387 (1926). These and other cases illustrate in practice the wisdom of the federal policy of avoiding constitutional adjudication where not absolutely essential to disposition of a case.” Id., at 547, n. 12.

In fact, in this very case we applied the Siler rule by remanding the case to the Court of Appeals with explicit instructions to consider whether respondents were entitled to relief under state law.

Not only does the Siler rule have an impressive historical pedigree, but it is also strongly supported by the interest in avoiding duplicative litigation and the unnecessary decision of federal constitutional questions.

“The policy’s ultimate foundations . . . lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our  [163]  system.” Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947)45

In addition, application of the Siler rule enhances the decisionmaking autonomy of the States. Siler directs the federal court to turn first to state law, which the State is free to modify or repeal. 46 By leaving the policy determinations underlying injunctive relief in the hands of the State, the Court of Appeals’ approach gives appropriate deference to established state policies.

In contrast, the rule the majority creates today serves none of the interests of the State. The majority prevents federal courts from implementing state policies through equitable enforcement of state law. Instead, federal courts are required to resolve cases on federal grounds that no state authority can undo. Leaving violations of state law unredressed and ensuring that the decisions of federal courts may never be reexamined by the States hardly comports with the respect for States as sovereign entities commanded by theEleventh Amendment.

V

One basic fact underlies this case: far from immunizing petitioners’ conduct, the State of Pennsylvania prohibited it. Respondents do not complain about the conduct of the State of Pennsylvania — it is Pennsylvania’s commands which they seek to enforce. Respondents seek only to have Pennhurst  [164]  run the way Pennsylvania envisioned that it be run. Until today, the Court understood that the Eleventh Amendment does not shield the conduct of state officers which has been prohibited by their sovereign.

Throughout its history this Court has derived strength from institutional self-discipline. Adherence to settled doctrine is presumptively the correct course. 47 Departures are, of course, occasionally required by changes in the fabric of our society. 48 When a court, rather than a legislature, initiates  [165]  such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well-settled respected doctrine that plainly commands affirmance of the Court of Appeals — the doctrine of the law of the case, 49 the doctrine of stare decisis (the Court repudiates at least 28 cases), 50 the  [166]  doctrine of sovereign immunity51the doctrine of pendent jurisdiction, 52 and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court’s voyage into the sea of undisciplined lawmaking.

 [167]  As I said at the outset, this case has illuminated the character of an institution.

I respectfully dissent.

 

 

 

Feb 21 14

Call for Comments, Thoughts, and Anecdotes

by merlin

If you happen to visit this blog, or follow it at all, you will notice that every entry may be commented on.  I am presently working hard to finish the paperwork for a large-scale lawsuit in federal court, and I would genuinely appreciate your input on this – either on the topic of litigation (schedules, Discovery matters, Affidavits of Indigency, important pleadings) or the topic of the Sex Offender Registry (especially where anybody who reads this has not been released from the Registry even though they were eligible and requested that relief, or if you know or represent a person facing that situation, as well as your own thoughts regarding the public notification aspects of it and your own experiences with the issues of employment, residence, and basic economic survival for persons who have been included on the Registry, in Georgia or elsewhere).

As I am busily re-learning the area of federal practice (something I was originally taught in law school, as I attended an out-of-State school), these comments help me, because they let me confront issues that might/will be raised, that I need to be able to address promptly.  Please, share your experiences in federal court, your experiences with the Registry or with persons convicted of offenses and required to be included on the Sex Offender Registry, and/or your thoughts on the underlying principles involved.

Feb 20 14

Timing in a Federal Lawsuit

by merlin

The initial timing issue (other than statutes of limitation and repose, which would necessarily vary depending on the nature of the case in question, and speaking here only in terms of absolute necessity) is governed by Rule 16 of the Federal Rules of Civil Procedure.  For reference on the text of the Rule itself, the excellent resource provided by Cornell University is listed here, and it is heartily recommended for the basic rules.

Rule 16 governs the Pretrial Conference, and the scheduling and management of a lawsuit.  It sets a time for the conference that is within the earlier of 90 days after any Defendant appears or 120 days after  any Defendant has been served with the Complaint, and it establishes the procedural parameters of the case.  These parameters include the time permitted for joining other Defendants, for completing Discovery (including extensive rules governing the taking of depositions), and motions to be filed.

The basic text of this Rule is as follows:

(a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation; and

(5) facilitating settlement.

(b) Scheduling.

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge—or a magistrate judge when authorized by local rule—must issue a scheduling order:

(A) after receiving the parties’ report under Rule 26(f); or

(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means.

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared.

(3) Contents of the Order.

(A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.

(B) Permitted Contents. The scheduling order may:

(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);

(ii) modify the extent of discovery;

(iii) provide for disclosure or discovery of electronically stored information;

(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced;

(v) set dates for pretrial conferences and for trial; and

(vi) include other appropriate matters.

(4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent.

(c) Attendance and Matters for Consideration at a Pretrial Conference.

(1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.

(2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters:

(A) formulating and simplifying the issues, and eliminating frivolous claims or defenses;

(B) amending the pleadings if necessary or desirable;

(C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;

(D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702;

(E) determining the appropriateness and timing of summary adjudication underRule 56;

(F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37;

(G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial;

(H) referring matters to a magistrate judge or a master;

(I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule;

(J) determining the form and content of the pretrial order;

(K) disposing of pending motions;

(L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue;

(N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);

(O) establishing a reasonable limit on the time allowed to present evidence; and

(P) facilitating in other ways the just, speedy, and inexpensive disposition of the action.

(d) Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.

(e) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.

(f) Sanctions.

(1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or

(C) fails to obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.