United States Ex Rel. Long v. SCS Business & Technical Institute, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 30, 1999

No. 98-5133

United States of America, ex rel. Ronald E. Long,

Appellee/Cross-Appellant

v.

SCS Business & Technical Institute, Inc., et al.,

Appellees

State of New York,

Appellant/Cross-Appellee

Attorney General of the United States,

Intervenor

Consolidated with

Nos. 98-5149 & 98-5150

Appeals from the United States District Court

for the District of Columbia

(92cv02092)

Supplemental Opinion

Howard L. Zwickel, Assistant Attorney General, State of

New York, argued the cause for appellant/cross-appellee.

With him on the briefs was Peter H. Schiff, Deputy Solicitor

General.

Ronald A. Shems, Assistant Attorney General, State of

Vermont, argued the cause for amici curiae State of Ver-

mont, et al. With him on the brief was William H. Sorrell,

Attorney General.

Douglas N. Letter, Appellate Litigation Counsel, United

States Department of Justice, argued the cause for United

States as intervenor. With him on the briefs were Frank W.

Hunger, Assistant Attorney General, and Wilma A. Lewis,

United States Attorney. Richard L. Cys entered an appear-

ance.

Stuart F. Pierson argued the cause and filed the briefs for

appellee/cross-appellant.

Jill A. Dunn was on the notice of joinder in brief for

appellant Joseph P. Frey.

Mark B. Rotenberg was on the brief for amicus curiae The

Regents of the University of Minnesota.

Before: Wald, Silberman, and Sentelle, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: In the same week that our

opinion issued, the Fifth Circuit held that the Eleventh

Amendment bars a False Claims Act qui tam suit against a

state in federal court. See United States ex rel. Foulds v.

Texas Tech Univ., No. 97-11182, 1999 WL 170139 (5th Cir.,

March 29, 1999). The court thought it was obliged to decide

that issue before reaching the question we decided--whether

the statute provides for a qui tam action against a state--

because the Eleventh Amendment issue is jurisdictional. Al-

though we certainly discussed the serious nature of the

Eleventh Amendment issue as it bore on our order of deci-

sion, we did not consider whether, as a matter of judicial

authority, we too were obliged to decide that issue. Since our

sister circuit implicitly challenged our jurisdiction--even

though no party before us did--and our mandate has not

issued, under these unusual circumstances, we think it appro-

priate to issue this supplemental opinion to explain why we

believe we should stick with the order of decision we adopted.

The Fifth Circuit reasoned as follows: since the question

whether a relator can sue a state under the Act is a cause of

action or merits question, and since the question whether a

federal court can hear such a suit under the Eleventh Amend-

ment is a jurisdictional one, the latter must be resolved

before the former. See id. at * 5-* 6. The principal authori-

ty that the Fifth Circuit relied on is Steel Co. v. Citizens for a

Better Env't, 118 S. Ct. 1003 (1998), in which the Supreme

Court held that a question of Article III standing must be

decided before the statutory question whether a cause of

action exists. See id. at 1012-16. In so holding, the Court

rejected the doctrine of "hypothetical jurisdiction," under

which lower courts--including this one, see, e.g., Cross-Sound

Ferry Servs., Inc. v. ICC, 934 F.2d 327, 333 (D.C. Cir. 1991)--

had assumed jurisdiction in order to reach the merits, where

the merits question was easier and the prevailing party on

the merits would be the same as the prevailing party were

jurisdiction denied. See Steel Co., 118 S. Ct. at 1012 (disap-

proving of Cross-Sound and other lower court decisions).

The doctrine, the Court said, is flatly inconsistent with core

principles limiting the role of Article III courts: "For a court

to pronounce upon the meaning or the constitutionality of a

state or federal law when it has no jurisdiction to do so is, by

very definition, for a court to act ultra vires." Id. at 1016.

We did not address this Steel Co. question in our opinion,

we confess, because we did not focus on it. Indeed, New

York--whose immunity from suit is at stake--specifically

urged us, apparently unlike Texas in Foulds, to decide the

statutory question first on the ground that nonconstitutional

grounds should be considered before constitutional ones. Ad-

mittedly, we ordinarily are obliged to raise jurisdictional

questions on our own, so the parties' litigating tactics would

not excuse our oversight. Still, the Eleventh Amendment bar

on suits against the states in federal court is not a garden

variety jurisdictional issue. Although the Amendment speaks

in terms of the limits of the judicial power, see U.S. Const.

Amend. XI ("The Judicial power of the United States shall not

be construed to extend...."), a state can waive its Eleventh

Amendment defense and consent to suit in federal court, and

the Supreme Court has held that there is no obligation for the

Court to raise the issue sua sponte. See Wisconsin Dep't of

Corrections v. Schacht, 118 S. Ct. 2047, 2052-53 (1998) (citing

Atascadero State Hsp. v. Scanlon, 473 U.S. 234, 241 (1985)

and Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n.19

(1982)).

To be sure, the Court has also held that the "Eleventh

Amendment defense sufficiently partakes of the nature of a

jurisdictional bar so that it need not be raised in the trial

court," Edelman v. Jordan, 415 U.S. 651, 678 (1974); see

Burkhart v. Washington Metropolitan Area Transit Auth.,

112 F.3d 1207, 1216 (D.C. Cir. 1997), and indeed can be raised

for the first time in the Supreme Court, see Ford Motor Co. v.

Department of Treasury, 323 U.S. 459, 467 (1945). Given

these somewhat conflicting rules, see Schacht, 118 S. Ct. at

2055 (Kennedy, J., concurring), the Court has frankly recog-

nized that the Eleventh Amendment is a rather peculiar kind

of "jurisdictional" issue. See Calderon v. Ashmus, 118 S. Ct.

1694, 1697 n.2 (1998) ("While the Eleventh Amendment is

jurisdictional in the sense that it is a limitation on the federal

court's judicial power, and therefore can be raised at any

stage of the proceedings, we have recognized that it is not co-

extensive with the limitations on judicial power in Article

III."); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261,

267 (1997) ("The Amendment, in other words, enacts a sover-

eign immunity from suit, rather than a nonwaivable limit on

the federal judiciary's subject-matter jurisdiction."). The

Court's most recent opinion noted that the question whether

Eleventh Amendment immunity is a matter of subject matter

jurisdiction is an open one. See Schacht, 118 S. Ct. at 2054.

New York's explicit request that we first decide the statu-

tory question could therefore be seen as a kind of agreement

to assert its Eleventh Amendment defense only if it loses on

the statutory one (a "springing" defense, as it were). As the

Supreme Court has recently made clear, "[t]he Eleventh

Amendment ... does not automatically destroy original juris-

diction," but instead "grants the State a legal power to assert

a sovereign immunity defense should it choose to do so."

Schacht, 118 S. Ct. at 2052 (emphasis added). A state can

waive its immunity from suit in the context of a litigation, see,

e.g., Ford Motor Co., 323 U.S. at 467-69, as long as it does so

unequivocally, see Atascadero, 473 U.S. at 246-47. Although

there are difficult questions about whether the state's attor-

neys must be authorized by state law to waive the state's

immunity, and about whether such authorization, if needed,

has been granted, compare id. (suggesting that such authori-

zation is necessary) with Schacht, 118 S. Ct. at 2055-56

(Kennedy, J., concurring) (questioning whether in the remov-

al context specific authorization is required), it may well be

that New York's approach amounts to a partial consent to

suit on the statutory question--subject to a later Eleventh

Amendment defense. And if so, we might be obligated to

decide the statutory question first.

But even if we were not so obligated, we think that we are

at least permitted to do so. Had New York chosen not to

assert its Eleventh Amendment defense below, or even before

us, it would not have been precluded from raising it thereaf-

ter. See Calderon, 118 S. Ct. at 1697 n.2 (Eleventh Amend-

ment "can be raised at any stage of the proceedings"); but cf.

Schacht, 118 S. Ct. at 2055 (Kennedy, J., concurring) (criticiz-

ing this rule because "permitting the belated assertion of the

Eleventh Amendment bar ... allow[s] States to proceed to

judgment without facing any real risk of adverse conse-

quences"). Unless that defense is asserted by the state, a

court is arguably not obliged to raise the issue itself since the

Supreme Court has made clear that the usual obligation to

raise jurisdictional issues sua sponte does not apply (at least

to the Court itself) in Eleventh Amendment cases. See

Patsy, 457 U.S. at 515 n.19.1 Therefore New York's litigation

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1 Whether the Patsy rule relieves lower courts of the sua

sponte obligation to raise the Eleventh Amendment issue is a

strategy--an Eleventh Amendment argument in the alterna-

tive--suggests that, at least, we are entitled to reverse the

Steel Co. order. After all, Steel Co.'s rule is premised on a

court's lack of power to reach the merits without establishing

its jurisdiction. In the Eleventh Amendment context, where

a court lacks power only if a state claims that it does, it is

arguable that we have no obligation to decide the Eleventh

Amendment issue first if the state does not demand that we

do so.

Moreover, the quasi-jurisdictional or "hybrid" status of the

Eleventh Amendment, see Schacht, 118 S. Ct. at 2055 (Kenne-

dy, J., concurring), raises questions about Steel Co.'s applica-

bility in this context, quite apart from New York's request

that we interpret the statute first. Since the Eleventh

Amendment at most "partakes of the nature of a jurisdiction-

al bar," Edelman, 415 U.S. at 678, it seems fair to ask

whether the Eleventh Amendment is sufficiently jurisdictional

to require us to decide a state's claim of Eleventh Amend-

ment immunity before turning to the merits. One indication

to the contrary is Calderon, in which the Supreme Court

decided that it "must first address" whether a particular

action for a declaratory judgment was an Article III case or

controversy before deciding the Eleventh Amendment ques-

tion on which certiorari had been granted, observing that the

Eleventh Amendment is "not co-extensive with the limitations

of judicial power in Article III." Calderon, 118 S. Ct. at 1697

& n.2. As between two jurisdictional issues, there ordinarily

is no obligation to decide one before the other. See Steel Co.,

118 S. Ct. at 1015 n.3; In re Minister Papandreou, 139 F.3d

247, 255 (D.C. Cir. 1998) (stating that dismissing on non-

merits grounds such as personal jurisdiction or forum non

conveniens, before deciding subject-matter jurisdiction, is

__________

matter of some controversy. See Coolbaugh v. Louisiana, 136 F.3d

430, 442 n.5 (5th Cir. 1998) (Smith, J., dissenting) (collecting cases

and authorities). We have raised an Eleventh Amendment question

on our own in a prior case, see Morris v. Washington Metropolitan

Area Transit Auth., 702 F.2d 1037, 1040 (D.C. Cir. 1983), but do not

appear ever to have held whether we must do so, notwithstanding

Patsy.

permissible under Steel Co.).2 That the Court in Calderon

thought itself obliged to decide the case or controversy ques-

tion first suggests that the Eleventh Amendment, a less than

pure jurisdictional question, need not be decided before a

merits question. One former judge of this court, in a concur-

ring opinion criticizing the hypothetical jurisdiction doctrine

later rejected in Steel Co., pointed in that direction. See

Cross-Sound Ferry, 934 F.2d at 341 (Thomas, J., concurring

in part and concurring in the denial of petition) (reasoning

that the rule requiring consideration of jurisdictional issues

before non-jurisdictional issues might not apply if "the ground

passed over sufficiently, though not entirely, 'partakes of the

nature' of a merits ground, or if the ground rested upon

'sufficiently,' though not entirely, 'partakes of the nature of a

jurisdictional bar' " (quoting Edelman, 415 U.S. at 678)).

Another difficulty in applying Steel Co. here is that classify-

ing the statutory question in an Eleventh Amendment case as

a "cause of action" or merits question is, though technically

accurate, somewhat misleading. The determination of wheth-

er a particular action is properly asserted against a state is

also a kind of logical prerequisite to the jurisdictional inquiry.

The Eleventh Amendment only bars a federal court from

hearing a "suit in law or equity, commenced or prosecuted

against one of the United States," and so it would seem

perfectly appropriate--perhaps even necessary--for courts to

determine whether there is even such a suit before the court.

That kind of inquiry--sometimes classified as "jurisdiction to

determine our jurisdiction," Nestor v. Hershey, 425 F.2d 504,

511 (D.C. Cir. 1969) (inquiring whether student deferment

sought was mandated by statute or within the discretion of

the draft board, as jurisdiction existed only for the former)--

is fairly common, even though the rulings made in determin-

ing jurisdiction are made without certainty that jurisdiction

actually exists. Occasionally, as in this case, what a court

__________

2 The Fifth Circuit has concluded otherwise, holding that in the

removal context, a district court must decide subject matter juris-

diction before personal jurisdiction. See Marathon Oil Co. v.

Ruhrgas AG, 145 F.3d 211, 215-25 (5th Cir.) (en banc), cert.

granted, 119 S. Ct. 589 (1998).

says about an issue of statutory interpretation that logically

precedes the ultimate jurisdictional determination removes

any contention that the court's jurisdiction is in question.

See, e.g., Webster v. Doe, 486 U.S. 592, 603-04 (1988) (using

clear statement principles and the constitutional avoidance

canon to hold that statutory provision did not, despite lan-

guage indicating that the statute was committed to agency

discretion, preclude judicial review of constitutional claims).

If the Eleventh Amendment were a statutory provision

stripping the federal courts of jurisdiction, the inquiry wheth-

er the case before the court was of the kind that the statute

forbade would be a fairly routine form of jurisdictional analy-

sis.3 Accordingly, in determining whether the Eleventh

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3 One analogy is cases involving the Norris-LaGuardia Act's

bar on federal courts issuing certain injunctions in labor disputes.

See 29 U.S.C. s 104 (1994) ("No court of the United States shall

have jurisdiction to issue any restraining order or temporary or

permanent injunction in any case involving or growing out of any

labor dispute to prohibit any person or persons participating or

interested in such dispute [from doing certain acts]."). Not surpris-

ingly, the Supreme Court has had to interpret that provision,

together with the provision defining it, see id. at s 113 ("A case

shall be held to involve or grow out of a labor dispute when the case

involves persons who are engaged in the same industry, trade, craft,

or occupation...."), to determine whether particular kinds of cases

fall within the jurisdictional bar. See, e.g., Burlington N. R.R. Co.

v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429,

440-44 (1987) (rejecting restrictive interpretation of Norris-

LaGuardia Act, under which a "labor dispute" would only include

disputes in which the picketed employer is "substantially aligned"

with the primary employer); United States v. United Mine Work-

ers of Am., 330 U.S. 258, 269-89 (1947) (interpreting general

language of ss 104 and 113 to exclude the United States, such that

where the United States seizes actual possession of mines or other

facilities and operates them, and where the United States is the

employer of the workers, the Norris-LaGuardia Act does not

apply); id. at 250-51 (holding that district court properly issued

restraining order to preserve existing conditions while it deter-

mined whether it had jurisdiction to issue injunctive relief, and that

Amendment bars a particular suit, federal courts must decide

a variety of issues that relate to the question whether the suit

is actually one brought against the state, and do so before

jurisdiction is finally resolved. See, e.g., Regents of the

University of California v. Doe, 117 S. Ct. 900, 904 & n.5

(1997) (noting that determining whether a state agency is an

"arm of the state" for Eleventh Amendment purposes, such

that the suit is one against the state itself, involves an

analysis of the state law provisions that define the agency's

character); Seminole Tribe of Florida v. Florida, 517 U.S. 44,

55-57 (1996) (analyzing Indian Gaming Regulatory Act for the

purpose of determining if Congress, consistent with Eleventh

Amendment abrogation requirements, set forth a clear state-

ment of its intent to provide for suits against the states in

federal court, and concluding that it did); Hafer v. Melo, 502

U.S. 21, 24 n.*, 30-31 (1991) (discussing, although not resolv-

ing, competing methods for determining whether a suit for

monetary damages is against a state official in his or her

official capacity, and thus against the state itself, or against a

state official in his or her personal capacity, to which the

Eleventh Amendment does not apply).

Still, it might be thought that the "jurisdiction to determine

jurisdiction" concept is not wholly satisfactory because wheth-

er states are persons under the False Claims Act is also a

cause of action question (which is what the Fifth Circuit

emphasized). But even if the cause of action aspect of the

statutory question takes it outside the "jurisdiction to deter-

mine jurisdiction" doctrine, two additional considerations jus-

tify the approach we have taken.

As our discussion already indicates, the "merits" question

is, in the Eleventh Amendment context, inextricably related

to the "jurisdictional" question. We noted this relationship in

our opinion in explaining why the Eleventh Amendment's

clear statement rule, ordinarily applied to an abrogation

inquiry, is relevant in determining whether there is a cause of

action against the states. Even if we were to assume that

__________

it had power to punish violations of its orders as criminal contempt

before the jurisdictional question was resolved).

states are defendant persons, and then actually to decide that

the Eleventh Amendment applied, we would then have to ask

whether, for abrogation purposes, the statute contains a clear

statement that states are to be defendants--which is more-or-

less the same statutory analysis that we previously under-

took. This can be seen in the Fifth Circuit's opinion, where

the court held that the state's Eleventh Amendment immuni-

ty was not abrogated because the Act did not contain the

requisite clear statement. See Foulds, 1999 WL 170139, at

* 11. The only real difference between the Fifth Circuit's

analysis of the statute and our own is that the Fifth Circuit

had to actually hold that the Eleventh Amendment applied--a

serious constitutional issue--in order to get there.

We think this close relationship between the statutory and

"jurisdictional" issues, even putting aside "jurisdiction to de-

termine jurisdiction," provides an independent ground on

which to distinguish Steel Co. The relationship between

these two issues is quite different from the relationship

between an ordinary "cause of action" question and a pure

jurisdictional issue such as standing. The Court in Steel Co.

rejected the contention that merits questions could be decided

before constitutional standing questions because the Article

III redressability requirement, for example, "has nothing to

do with the text of the statute relied upon" (except with

regard to entirely frivolous claims). Steel Co., 118 S. Ct. at

1013 n.2. By contrast, the Court explained why merits

questions can be decided before statutory or prudential

standing questions: the two questions overlap to such an

extent that it would be "exceedingly artificial to draw a

distinction between the two." Id. If an inextricable relation-

ship between statutory standing and the merits permits a

court to decide the merits first, the same order would seem

appropriate for the two claims before us.

In addition, we do not think our approach even implicates

the concerns underlying the Supreme Court's rejection of

"hypothetical jurisdiction" because the statutory question is

logically antecedent to the Eleventh Amendment question

(even if it were not thought an aspect of "jurisdiction to

determine jurisdiction"). We have not chosen to decide a

pure (and relatively easier) merits question on the assump-

tion that we have jurisdiction--the paradigm of the hypothet-

ical jurisdiction model. When a court decides, as we do, that

a statute does not provide for a suit against the states, there

is no risk at all that the court is issuing a hypothetical

judgment--an advisory opinion by a court whose very power

to act is in doubt. See Steel Co., 118 S. Ct. at 1016. Rather,

the conclusion that the statute does not provide for suits

against the states in federal court is, in effect, a resolution of

the jurisdictional question, in that the Eleventh Amendment

can no longer be said to apply (which is quite different from

saying, as courts do under the hypothetical jurisdiction doc-

trine, that jurisdiction does not matter because the same

party arguing a lack of jurisdiction prevails on the merits).

The Supreme Court recently adopted precisely this reasoning

in deciding a class action certification issue before an asserted

"array of jurisdictional barriers," including ripeness, standing,

and subject matter jurisdiction. See Amchem Prods., Inc. v.

Windsor, 117 S. Ct. 2231, 2244 (1997). The Court said that,

because resolution of the class certification issues was "logi-

cally antecedent to the existence of any Article III issues, it

[was] appropriate to reach them first." Id. The Fifth Cir-

cuit's view instead is that a court must assume that states are

defendants under the Act and address the Eleventh Amend-

ment question at the outset, lest the court give an interpreta-

tion of the statute that it has no power to give. See Foulds,

1999 WL 170139, at * 6 ("[I]f the Eleventh Amendment

removes our jurisdictional authority to hear [the] case, we

have no power to determine whether the False Claims Act

creates a cause of action against states...."). But such an

approach ostensibly avoids the evils of "hypothetical jurisdic-

tion" (not really at issue) in favor of deciding a purely

hypothetical jurisdictional issue--that is, a jurisdictional issue

that arises solely by virtue of the statutory question assumed.

Since the Eleventh Amendment issue in this case "would not

exist but for" that assumption, Amchem, 117 S. Ct. at 2244

(quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623

(3d Cir. 1996)), we think it is appropriate for us to decide the

logically prior issue first.4

Perhaps most important, our reasoning is confirmed by

several Eleventh Amendment cases in which the Supreme

Court itself has decided "cause of action" questions before

turning to the Eleventh Amendment. See, e.g., Hafer, 502

U.S. at 21-30 (holding that state officials sued in their individ-

ual capacities are persons under 42 U.S.C. s 1983, and then

holding that the Eleventh Amendment presents no bar to

such a suit); Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391, 398-402 (1979) (deciding that

a claim against an interstate compact that required federal

approval was a claim alleging a deprivation of constitutional

rights "under color of state law" within the meaning of

s 1983, and then deciding that the compact was not entitled

to Eleventh Amendment immunity)5; Monell v. Department

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4 Of course, we recognize some tension between Amchem and

Steel Co., in that a cause of action question is, in a sense, logically

antecedent to jurisdiction too: without a cause of action, the ques-

tion whether a party satisfies jurisdictional requirements would not

arise. Yet Steel Co. clearly requires a court to decide jurisdiction

first. But the Court did not cast any doubt on Amchem in Steel

Co., and we think logical priority, as in Amchem, should control

here.

5 Lake Country Estates went so far as to state that this order

of decision was required. See Lake Country Estates, 440 U.S. at

398 ("Before addressing the immunity issues [of which the Eleventh

Amendment was one], we must consider whether petitioners prop-

erly invoked the jurisdiction of a federal court [under 28 U.S.C.

s 1331]."). Of course, as the Court went on to explain, the question

whether a plaintiff has a federal cause of action sufficient to create

jurisdiction under s 1331 is not itself a jurisdictional argument

(except in the rare circumstances in which the cause of action is

frivolous, see Steel Co., 118 S. Ct. at 1010 (citing Bell v. Hood, 327

U.S. 678, 682 (1946)). See Lake Country Estates, 440 U.S. at 398

("[R]espondents' 'jurisdictional' arguments are not squarely direct-

ed at jurisdiction itself, but rather at the existence of a remedy for

the alleged violation of their federal rights."). Still, after identify-

ing the argument as a cause of action argument, the Court resolved

that issue before even turning to the Eleventh Amendment ques-

tion. If the Fifth Circuit were right, the Court should have

of Social Servs., 436 U.S. 658, 664-90 & n.54 (1978) (deciding

that municipalities are persons under s 1983 and, in conclu-

sion, noting that the Eleventh Amendment would not bar

such suits to the extent that a municipality is not considered a

part of the state for Eleventh Amendment purposes); Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

278-80 (1977) (deciding first that the contention that munici-

palities were not persons under s 1983 was a merits question

that had been waived, and then deciding that the Eleventh

Amendment does not bar a suit against a municipality in

federal court); see also Doe v. Chiles, 136 F.3d 709, 713-21

(11th Cir. 1998) (deciding first that a provision of the Medic-

aid Act created a federal right to reasonably prompt provision

of assistance enforceable under s 1983, and only then con-

cluding that the suit was not barred by the Eleventh Amend-

ment). Though these cases pre-date Steel Co., we think they

lend considerable support--albeit implicit--to our approach.

On the other hand, the Court in Welch v. Texas Depart-

ment of Highways and Public Transportation, 483 U.S. 468

(1987), decided an Eleventh Amendment abrogation question

and specifically reserved the question whether the statute

created a cause of action. See id. at 476 n.6 ("Because

Eleventh Amendment immunity 'partakes of the nature of a

jurisdictional bar,' we have no occasion to consider the State's

additional argument that Congress did not intend to afford

seamen employed by the States a remedy under the Jones

Act" (quoting Edelman, 415 U.S. at 678)). This decision is

hardly support for our position. But we do not think the

Court's comment that it had "no occasion" to consider the

cause of action question fairly should be read as a holding

that cause of action questions must be decided second. See

also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S.

275, 277-83 (1959) (holding that the two states had waived

their Eleventh Amendment immunity from suit in an inter-

state compact, and only then deciding that interstate com-

__________

assumed the cause of action existed once it satisfied itself that the

claim was not a jurisdictional one.

pacts were not exempt from the term "employer" in the Jones

Act, but giving no indication that that order of decision was

required). If that were so, Welch would be flatly inconsistent

with the cases cited above. Again, the Court in Welch

referred to the quasi-jurisdictional nature of the Eleventh

Amendment--that it "partakes" of the nature of a jurisdic-

tional bar--which of course suggests that the order of deci-

sion adopted was not a mandatory one.

Nor do we think, as did the Fifth Circuit, see Foulds, 1999

WL 170139, at *5, that Blatchford v. Native Village of Noa-

tak, 501 U.S. 775 (1991), is to the contrary. The Supreme

Court did note in Blatchford that, given the Eleventh Amend-

ment bar, it would not express a view about whether the

respondent was a "tribe" within the meaning of the statute in

question, see Blatchford, 501 U.S. at 788 n.5. But the statuto-

ry question was not a "cause of action" question at all but

rather a question concerning the jurisdictional statute under

which the respondent had sued, see 28 U.S.C. s 1362 (provid-

ing for federal court jurisdiction for suits by tribes involving

federal law). At most, the Court in Blatchford, for reasons

not entirely clear to us, decided the case on Eleventh Amend-

ment jurisdictional grounds instead of addressing a purely

statutory jurisdictional argument--whether the tribe had

even established jurisdiction in the first place as a "tribe"

under s 1362--that could have made unnecessary its various

constitutional holdings. See id. at 779-82 (holding that suits

by tribes are barred by the Eleventh Amendment); id. at

783-86 (holding that s 1362 did not effect a delegation of the

United States' exemption from the Eleventh Amendment bar

to tribes); see id. at 786-88 (holding that s 1362 did not

abrogate the states' Eleventh Amendment immunity).6 And

again, while there does not appear to be a requirement that

some jurisdictional grounds be decided before others, see

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6 The Ninth Circuit, interestingly enough, had decided the

statutory jurisdictional question before turning to the Eleventh

Amendment issues. See Native Village of Noatak v. Hoffman, 896

F.2d 1157, 1160-61 (9th Cir. 1990), rev'd, Blatchford, 501 U.S. 775

(1991). The Supreme Court obviously chose a different order, but

Steel Co., 118 S. Ct. at 1015 n.3, the Court's statement in

Calderon that it was required to decide a case or controversy

question before reaching the Eleventh Amendment, see Cal-

deron, 118 S. Ct. at 1697, casts considerable doubt on Blatch-

ford's order of decision. In any event, Blatchford certainly

cannot be said to mandate the Fifth Circuit's view that the

Eleventh Amendment issue must always be decided first.

We have taken pains to discuss the issue that the Fifth

Circuit identified because of its importance. Although the

issue is complex, and the case law not altogether clear, we are

confident that no authority or principle prohibits our ap-

proach. And because it has the significant virtue of avoiding

a difficult constitutional question, we think it is also the

preferable one.

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did not in any way purport to reject this aspect of the Ninth

Circuit's approach.