Virginia Office for Protection and Advocacy v. Stewart

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

VIRGINIA OFFICE FOR PROTECTION AND ADVO-

CACY v. STEWART, COMMISSIONER, VIRGINIA

DEPARTMENT OF BEHAVIORAL HEALTH

AND DEVELOPMENTAL SERVICES, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 09–529. Argued December 1, 2010—Decided April 19, 2011

Together, the Developmental Disabilities Assistance and Bill of Rights

Act of 2000 (DD Act) and the Protection and Advocacy for Individuals

with Mental Illness Act (PAIMI Act) offer States federal money to

improve, inter alia, medical care for persons with developmental dis

abilities or mental illness. As a condition of funding, a State must es

tablish a protection and advocacy (P&A) system “to protect and advo

cate [those individuals’] rights.” 42 U. S. C. §15043(a)(1). A

participating State may appoint either a state agency or a private

nonprofit entity as its P&A system, but if a state agency it must have

authority to litigate and freedom from the control of other state agen

cies or officers. Virginia has appointed an independent state agency,

petitioner Virginia Office for Protection and Advocacy (VOPA), au

thorizing it to litigate to secure disabled individuals’ rights, free of

executive-branch oversight; to operate independently of Virginia’s at

torney general; and to employ its own lawyers to sue on its behalf.

While investigating patient deaths and injuries at state mental

hospitals, VOPA asked respondents—state officials in charge of those

hospitals—to produce relevant patient records. Respondents refused,

asserting that a state-law privilege shielded the records from disclo

sure. VOPA then filed suit in Federal District Court, seeking a dec

laration that respondents’ refusal to produce the records violated the

DD and PAIMI Acts and an injunction requiring respondents to pro

duce the records and refrain in the future from interfering with

VOPA’s right of access. Respondents moved to dismiss on the ground

2 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Syllabus

that they are immune from suit under the Eleventh Amendment, but

the court held that the suit was permitted by the doctrine of Ex parte

Young, 209 U. S. 123, which normally allows federal courts to award

prospective relief against state officials for violations of federal law.

The Fourth Circuit reversed, finding that Ex parte Young did not ap

ply because the suit was brought by a state agency.

Held: Ex parte Young allows a federal court to hear a lawsuit for pro

spective relief against state officials brought by another agency of the

same State. Pp. 4–13.

(a) Absent a waiver of sovereign immunity by a State itself or a

valid abrogation by Congress, federal courts may not entertain a pri

vate person’s suit against a State. Pp. 4–5.

(b) The doctrine of Ex parte Young, which establishes an important

limitation on the sovereign-immunity principle, is accepted as neces

sary to “permit the federal courts to vindicate federal rights.” Penn

hurst State School and Hospital v. Halderman, 465 U. S. 89. It rests

on the premise that when a federal court commands a state official to

do nothing more than refrain from violating federal law, he is not the

State for sovereign-immunity purposes. It does not apply “when ‘the

state is the . . . party in interest.’ ” Id., at 101. Pp. 5–6.

(c) Entertaining VOPA’s action is consistent with precedent and

does not offend the distinctive interests protected by sovereign im

munity. Pp. 6–13.

(1) Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S.

635, held that, in determining the Ex parte Young doctrine’s applica

bility, “a court need only conduct a ‘straightforward inquiry into

whether [the] complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.’ ” Id., at 645.

VOPA’s suit satisfies that inquiry. Respondents concede that the ac

tion would be proper were VOPA a private organization rather than a

state agency. The “general criterion for determining when a suit is in

fact against the sovereign is the effect of the relief sought,” Penn

hurst, supra, at 107, not who is bringing the lawsuit. This Court ap

plied that criterion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S.

261, which held that an Indian Tribe could not invoke Ex parte Young

to bring what was essentially a quiet title suit that would “extinguish

[Idaho’s] control over . . . lands and waters long deemed . . . an inte

gral part of its territory.” Id., at 282. Respondents have advanced no

argument that the relief sought here threatens a similar invasion of

Virginia’s sovereignty. Pp. 7–9.

(2) Respondents claim that a State’s dignity is diminished when

a federal court adjudicates a dispute between its components. But a

State’s stature is not diminished to any greater degree when its own

agency sues to enforce its officers’ compliance with federal law than

Cite as: 563 U. S. ____ (2011) 3

Syllabus

when a private person does so. Moreover, VOPA’s power to sue state

officials is a consequence of Virginia’s own decision to establish a

public P&A system. Not every offense to a State’s dignity constitutes

a denial of sovereign immunity. The specific indignity against which

sovereign immunity protects is the insult to a State of being haled

into court without its consent; that does not occur just because a suit

happens to be brought by another state agency. Pp. 9–11.

(3) The apparent novelty of this suit is not likely a consequence

of past constitutional doubts. In order to invoke the Ex parte Young

exception, a state agency needs both a federal right that it possesses

against its parent State and authority to sue state officials to enforce

that right, free from any internal state-government veto; such condi

tions rarely coincide. In any event, the principles undergirding the

Ex parte Young doctrine support its extension to actions of this kind.

Pp. 12–13.

568 F. 3d 110, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which KENNEDY,

THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. KENNEDY, J.,

filed a concurring opinion, in which THOMAS, J., joined. ROBERTS, C. J.,

filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., took no

part in the consideration or decision of the case.

Cite as: 563 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–529

_________________

VIRGINIA OFFICE FOR PROTECTION AND ADVO-

CACY, PETITIONER v. JAMES W. STEWART III,

COMMISSIONER, VIRGINIA DEPARTMENT

OF BEHAVIORAL HEALTH AND DE-

VELOPMENTAL SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[April 19, 2011]

JUSTICE SCALIA delivered the opinion of the Court.

We consider whether Ex parte Young, 209 U. S. 123

(1908), allows a federal court to hear a lawsuit for prospec

tive relief against state officials brought by another agency

of the same State.

I

A

The Developmental Disabilities Assistance and Bill of

Rights Act of 2000 (DD Act), 114 Stat. 1677, 42 U. S. C.

§15001 et seq., offers States federal money to improve

community services, such as medical care and job train

ing, for individuals with developmental disabilities. See

§§15023(a), 15024. As a condition of that funding, a State

must establish a protection and advocacy (P&A) system

“to protect and advocate the rights of individuals with

developmental disabilities.” §15043(a)(1). The P&A sys

tem receives separate federal funds, paid to it directly.

§15042(a) and (b). A second federal law, the Protection

2 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Opinion of the Court

and Advocacy for Individuals with Mental Illness Act

(PAIMI Act), 100 Stat. 478, 42 U. S. C. §10801 et seq.,

increases that separate funding and extends the mission

of P&A systems to include the mentally ill. §§10802(2),

10803, 10827. At present, every State accepts funds under

these statutes.

Under the DD and PAIMI Acts, a P&A system must

have certain powers. The system “shall . . . have the

authority to investigate incidents of abuse and neglect . . .

if the incidents are reported to the system or if there is

probable cause to believe that the incidents occurred.”

§15043(a)(2)(B); §10805(a)(1)(A). Subject to certain statu

tory requirements, it must be given access to “all records”

of individuals who may have been abused, see

§15043(a)(2)(I)(iii)(II); §10805(a)(4)(B)(iii), as well as

“other records that are relevant to conducting an investi

gation,” §15043(a)(2)(J)(i). The Acts also require that a

P&A system have authority to “pursue legal, administra

tive, and other appropriate remedies or approaches to

ensure the protection of” its charges. §15043(a)(2)(A)(i);

see §10805(a)(1)(B). And in addition to pressing its own

rights, a P&A system may “pursue administrative, legal,

and other remedies on behalf of” those it protects.

§10805(a)(1)(C); see §15044(b).

A participating State is free to appoint either a state

agency or a private nonprofit entity as its P&A system.

§15044(a); §10805(c)(1)(B). But in either case, the desig

nated entity must have certain structural features that

ensure its independence from the State’s government. The

DD Act prohibits the Governor from appointing more than

one-third of the members of the system’s governing board,

§15044(a)(2), and restricts the State’s ability to impose

hiring freezes or other measures that would impair the

system’s ability to carry out its mission, §15043(a)(2)(K).

Once a State designates an entity as its P&A system, it

may not change its selection without “good cause.”

Cite as: 563 U. S. ____ (2011) 3

Opinion of the Court

§15043(a)(4)(A).

Virginia is one of just eight States that have designated

a government entity as their P&A system. The Virginia

Office for Protection and Advocacy (VOPA) is an “inde

pendent state agency.” Va. Code Ann. §51.5–39.2(A)

(Lexis 2009). Its board consists of eleven “nonlegislative

citizen members,” of whom only three are appointed by

the Governor. §51.5–39.2(B). The remaining eight are

appointed by components of the legislature: five by the

Speaker of the House of Delegates, and three by the Sen

ate Committee on Rules. Ibid. VOPA itself nominates

candidates for consideration, and the statute instructs the

appointing officials that they “shall seriously consider the

persons nominated and appoint such persons whenever

feasible.” Ibid. Board members serve for fixed terms and

are removable only by a court and only for specified rea

sons. See §51.5–39.2(C) and (F); §24.2–233 and 234 (Lexis

2006).

VOPA enjoys authority to litigate free of executive

branch oversight. It operates independently of the Attor

ney General of Virginia and employs its own lawyers, who

are statutorily authorized to sue on VOPA’s behalf. §51.5–

39.2(A); §2.2–510(5) (Lexis 2008). And Virginia law spe

cifically empowers VOPA to “initiate any proceedings to

secure the rights” of disabled individuals. §51.5–39.2(A).

B

In 2006, VOPA opened an investigation into the deaths

of two patients and injuries to a third at state-run mental

hospitals. It asked respondents—state officials in charge

of those institutions—to produce any records related to

risk-management or mortality reviews conducted by the

hospitals with respect to those patients. Respondents

refused, asserting that the records were protected by a

state-law privilege shielding medical peer-review materi

als from disclosure.

4 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Opinion of the Court

VOPA then brought this action in the United States

District Court for the Eastern District of Virginia, alleging

that the DD and PAIMI Acts entitled it to the peer-review

records, notwithstanding any state-law privilege that

might apply. It sought a declaration that respondents’

refusal to produce the records violated the DD and PAIMI

Acts, along with an injunction requiring respondents to

provide access to the records and refrain in the future

from interfering with VOPA’s right of access to them.

Respondents moved to dismiss the action on the grounds

that they are immune from suit under the Eleventh

Amendment. The District Court denied the motion. In its

view, the suit was permitted by the doctrine of Ex parte

Young, which normally allows federal courts to award

prospective relief against state officials for violations of

federal law. Virginia v. Reinhard, 2008 WL 2795940, *6

(ED Va., July 18, 2008).

The Court of Appeals reversed. Virginia v. Reinhard,

568 F. 3d 110 (CA4 2009). Believing VOPA’s lawsuit to be

an “intramural contest” that “encroaches more severely on

the dignity and sovereignty of the states than an Ex parte

Young action brought by a private plaintiff,” the Court of

Appeals concluded it was not authorized by that case. Id.,

at 119–120 (internal quotation marks omitted).

We granted certiorari. 561 U. S. ____ (2010).

II

A

Sovereign immunity is the privilege of the sovereign not

to be sued without its consent. The language of the Elev

enth Amendment1 only eliminates the basis for our judg

——————

1 The

Eleventh Amendment reads as follows:

“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.”

Cite as: 563 U. S. ____ (2011) 5

Opinion of the Court

ment in the famous case of Chisholm v. Georgia, 2 Dall.

419 (1793), which involved a suit against a State by a

noncitizen of the State. Since Hans v. Louisiana, 134

U. S. 1 (1890), however, we have understood the Eleventh

Amendment to confirm the structural understanding that

States entered the Union with their sovereign immunity

intact, unlimited by Article III’s jurisdictional grant.

Blatchford v. Native Village of Noatak, 501 U. S. 775, 779

(1991); see Pennhurst State School and Hospital v. Hal

derman, 465 U. S. 89, 98 (1984). Our cases hold that the

States have retained their traditional immunity from suit,

“except as altered by the plan of the Convention or certain

constitutional amendments.” Alden v. Maine, 527 U. S.

706, 713 (1999). A State may waive its sovereign immu

nity at its pleasure, College Savings Bank v. Florida Pre

paid Postsecondary Ed. Expense Bd., 527 U. S. 666, 675–

676 (1999), and in some circumstances Congress may

abrogate it by appropriate legislation.2 But absent waiver

or valid abrogation, federal courts may not entertain a

private person’s suit against a State.

B

In Ex parte Young, 209 U. S. 123, we established an

important limit on the sovereign-immunity principle.

That case involved a challenge to a Minnesota law reduc

ing the freight rates that railroads could charge. A rail

road shareholder claimed that the new rates were un

constitutionally confiscatory, and obtained a federal

injunction against Edward Young, the Attorney General of

Minnesota, forbidding him in his official capacity to en

force the state law. Perkins v. Northern Pacific R. Co., 155

F. 445 (CC Minn. 1907). When Young violated the injunc

——————

2 We have recognized that Congress may abrogate a State’s immunity

when it acts under §5 of the Fourteenth Amendment, Seminole Tribe of

Fla. v. Florida, 517 U. S. 44, 59 (1996), but not when it acts under its

original Article I authority to regulate commerce, id., at 65–66.

6 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Opinion of the Court

tion by initiating an enforcement action in state court, the

Circuit Court held him in contempt and committed him to

federal custody. In his habeas corpus application in this

Court, Young challenged his confinement by arguing that

Minnesota’s sovereign immunity deprived the federal

court of jurisdiction to enjoin him from performing his

official duties.

We disagreed. We explained that because an unconsti

tutional legislative enactment is “void,” a state official who

enforces that law “comes into conflict with the superior

authority of [the] Constitution,” and therefore is “stripped

of his official or representative character and is subjected

in his person to the consequences of his individual con

duct. The State has no power to impart to him any immu

nity from responsibility to the supreme authority of the

United States.” 209 U. S., at 159–160.

This doctrine has existed alongside our sovereign

immunity jurisprudence for more than a century, accepted

as necessary to “permit the federal courts to vindicate

federal rights.” Pennhurst, 465 U. S., at 105. It rests on

the premise—less delicately called a “fiction,” id., at 114,

n. 25—that when a federal court commands a state official

to do nothing more than refrain from violating federal law,

he is not the State for sovereign-immunity purposes. The

doctrine is limited to that precise situation, and does not

apply “when ‘the state is the real, substantial party in

interest,’ ” id., at 101 (quoting Ford Motor Co. v. Depart

ment of Treasury of Ind., 323 U. S. 459, 464 (1945)), as

when the “ ‘judgment sought would expend itself on the

public treasury or domain, or interfere with public ad

ministration,’ ” 465 U. S., at 101, n. 11 (quoting Dugan v.

Rank, 372 U. S. 609, 620 (1963)).

C

This case requires us to decide how to apply the Ex parte

Young doctrine to a suit brought by an independent state

Cite as: 563 U. S. ____ (2011) 7

Opinion of the Court

agency claiming to possess federal rights. Although we

have never encountered such a suit before, we are satis

fied that entertaining VOPA’s action is consistent with our

precedents and does not offend the distinctive interests

protected by sovereign immunity.

1

In Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535

U. S. 635 (2002), we held that “[i]n determining whether

the doctrine of Ex parte Young avoids an Eleventh Amend

ment bar to suit, a court need only conduct a ‘straightfor

ward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly

characterized as prospective.’ ” Id., at 645 (quoting Idaho

v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 296 (1997)

(O’Connor, J., concurring in part and concurring in judg

ment)). There is no doubt VOPA’s suit satisfies that

straightforward inquiry. It alleges that respondents’

refusal to produce the requested medical records violates

federal law; and it seeks an injunction requiring the pro

duction of the records, which would prospectively abate

the alleged violation. Respondents concede that were

VOPA a private organization rather than a state agency,

the doctrine would permit this action to proceed.3

——————

3 The dissent is mistaken when it claims that applying the Verizon

Maryland test would mean two of our cases were “wrongly decided.”

Post, at 4 (opinion of ROBERTS, C. J.). We discuss the first of those

cases, Coeur d’Alene Tribe, below. Infra, at 8. As for the second,

Seminole Tribe, supra, it is inapposite. The reason we refused to

permit suit to proceed in that case was that the Indian Gaming Regula

tory Act created an alternative remedial scheme that would be under

mined by permitting Ex parte Young suits; Congress, we said, had

foreclosed recourse to the doctrine. See Seminole Tribe, supra, at 73–

76.

Respondents now argue—for the first time in this litigation—that

the DD and PAIMI Acts have the same effect here. We reject that

suggestion. The fact that the Federal Government can exercise over

sight of a federal spending program and even withhold or withdraw

8 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Opinion of the Court

We see no reason for a different result here. Although

respondents argue that VOPA’s status as a state agency

changes the calculus, there is no warrant in our cases for

making the validity of an Ex parte Young action turn on

the identity of the plaintiff. To be sure, we have been

willing to police abuses of the doctrine that threaten to

evade sovereign immunity. To do otherwise “would be

to adhere to an empty formalism.” Coeur d’Alene Tribe,

supra, at 270. But (as the dissent concedes, post, at 8

(opinion of ROBERTS, C. J.)) the limits we have recognized

reflect the principle that the “general criterion for deter

mining when a suit is in fact against the sovereign is the

effect of the relief sought,” Pennhurst, supra, at 107, not

who is bringing the lawsuit. Thus, Ex parte Young cannot

be used to obtain an injunction requiring the payment of

funds from the State’s treasury, see Edelman v. Jordan,

415 U. S. 651, 666 (1974); or an order for specific perform

ance of a State’s contract, see id., at 666–667; In re Ayers,

123 U. S. 443 (1887).

Coeur d’Alene Tribe, on which respondents heavily rely,

is an application of this principle. There we refused to

allow an Indian Tribe to use Ex parte Young to obtain

injunctive and declaratory relief establishing its exclusive

right to the use and enjoyment of certain submerged lands

in Idaho and the invalidity of all state statutes and regu

lations governing that land. 521 U. S., at 265. We deter

mined that the suit was “the functional equivalent of a

quiet title suit against Idaho,” would “extinguish . . . the

State’s control over a vast reach of lands and waters long

deemed by the State to be an integral part of its territory,”

and thus was barred by sovereign immunity. Id., at 282.

——————

funds—which are the chief statutory features respondents point to—

does not demonstrate that Congress has “displayed an intent not to

provide the ‘more complete and more immediate relief’ that would

otherwise be available under Ex parte Young.” Verizon Maryland, 535

U. S., at 647 (quoting Seminole Tribe, 517 U. S., at 75).

Cite as: 563 U. S. ____ (2011) 9

Opinion of the Court

Respondents have advanced no argument that the relief

sought in this case threatens any similar invasion of Vir

ginia’s sovereignty. Indeed, they concede that the very

injunction VOPA requests could properly be awarded by a

federal court at the instance of a private P&A system.

2

Respondents and the dissent argue that entertaining

VOPA’s lawsuit in a federal forum would nevertheless

infringe Virginia’s sovereign interests because it dimin

ishes the dignity of a State for a federal court to adjudicate

a dispute between its components. See Brief for Respon

dents 23–26; post, at 4–8 (arguing that “ ‘special sover

eignty interests’ ” bar VOPA’s lawsuit (quoting Coeur

d’Alene Tribe, supra, at 281)). We disagree. As an initial

matter, we do not understand how a State’s stature could

be diminished to any greater degree when its own agency

polices its officers’ compliance with their federal obliga

tions, than when a private person hales those officers into

federal court for that same purpose—something everyone

agrees is proper.4 And in this case, of course, VOPA’s

power to sue state officials is a consequence of Virginia’s

own decision to establish a public, rather than a private,

P&A system. We fail to perceive what Eleventh Amend

ment indignity is visited on the Commonwealth when, by

operation of its own laws, VOPA is admitted to federal

——————

4 The dissent compares VOPA’s lawsuit to such indignities as “canni

balism” and “patricide,” since it is a greater “affront to someone’s

dignity to be sued by a brother than to be sued by a stranger.” Post, at

9. We think the dissent’s principle of familial affront less than univer

sally applicable, even with respect to real families, never mind govern

mental siblings. Most of us would probably prefer contesting a testa

mentary disposition with a relative to contesting it with a stranger.

And confining one’s child to his room is called grounding, while confin

ing a stranger’s child is called kidnaping. Jurisdiction over this case

does not depend on which is the most apt comparison.

10 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Opinion of the Court

court as a plaintiff.5

But even if it were true that the State’s dignity were

offended in some way by the maintenance of this action in

federal court, that would not prove respondents’ case.

Denial of sovereign immunity, to be sure, offends the

dignity of a State; but not every offense to the dignity of a

State constitutes a denial of sovereign immunity. The

specific indignity against which sovereign immunity pro

tects is the insult to a State of being haled into court

without its consent. That effectively occurs, our cases

reasonably conclude, when (for example) the object of the

suit against a state officer is to reach funds in the state

treasury or acquire state lands; it does not occur just

because the suit happens to be brought by another state

agency. Respondents’ asserted dignitary harm is simply

unconnected to the sovereign-immunity interest.

The dissent complains that applying Ex parte Young to

this lawsuit divides Virginia against itself, since the op

posing parties are both creatures of the Commonwealth.

Post, at 7. Even if that were a distinctive consequence of

letting this suit proceed in federal court, it would have

nothing to do with the concern of sovereign-immunity—

whether the suit is against an unconsenting State, rather

than against its officers. But it is not a consequence of the

federal nature of the forum. The same result will follow if

the federal claim is sued upon in state court, as the dis

sent would require. There also, “[w]hatever the decision

——————

5 The dissent accuses us of circular reasoning, because we “wrongly

assum[e] [that] Virginia knew in advance the answer to the question

presented in this case.” Post, at 10. That would be true if we were

relying on the Commonwealth’s waiver of sovereign immunity. We are

not. We rely upon Ex parte Young. We say that Virginia has only itself

to blame for the position in which it finds itself, not because it con

sented to suit, but because it created a state entity to sue, instead of

leaving the task to a private entity. It did not have to know that this

would allow suit in federal court. Know or not know, Ex parte Young

produces that result.

Cite as: 563 U. S. ____ (2011) 11

Opinion of the Court

in the litigation, . . . [t]he Commonwealth will win[, a]nd

the Commonwealth will lose.” Ibid. Nor would sending

the matter to state court even avoid the prospect that “a

federal judge will resolve which part of the Common

wealth will prevail,” ibid., since the state-court loser could

always ask this Court to review the matter by certiorari.

(Or is that appeal also to be disallowed on grounds of

sovereign immunity? But see Cohens v. Virginia, 6

Wheat. 264 (1821).)6 And of course precisely the same

thing would happen if respondents specifically waived

their sovereign-immunity objections in this very case. Yet

no one would contend that despite the waiver, sovereign

immunity forbade the suit. So also here: If, by reason of

Ex parte Young, there has been no violation of sovereign

immunity, the prospect of a federal judge’s resolving

VOPA’s dispute with respondents does not make it so.

We do not doubt, of course, that there are limits on the

Federal Government’s power to affect the internal opera

tions of a State. See, e.g., Printz v. United States, 521

U. S. 898 (1997) (Congress may not commandeer state

officers); Coyle v. Smith, 221 U. S. 559, 579 (1911) (Con

gress may not dictate a State’s capital). But those limits

must be found in some textual provision or structural

premise of the Constitution. Additional limits cannot be

smuggled in under the Eleventh Amendment by barring a

suit in federal court that does not violate the State’s sov

ereign immunity. 7

——————

6 The dissent agrees that because of the “ ‘constitutional plan,’ ” post,

at 8, n. 3 (quoting McKesson Corp. v. Division of Alcoholic Beverages

and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 30 (1990),

this Court can adjudicate disputes between state agencies without

offending sovereign immunity. But explaining away exceptions to its

theory does not advance the ball. It has not demonstrated that sover

eign immunity has anything at all to say about federal courts’ adjudi

cating interagency disputes.

7 We have no occasion to pass on other questions of federalism lurk

ing in this case, such as whether the DD or PAIMI Acts are a proper

12 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

Opinion of the Court

3

A weightier objection, perhaps, is the relative novelty of

this lawsuit. Respondents rightly observe that federal

courts have not often encountered lawsuits brought by

state agencies against other state officials. That does give

us pause. Lack of historical precedent can indicate a

constitutional infirmity, see, e.g., Free Enterprise Fund v.

Public Company Accounting Oversight Bd., 561 U. S. ____,

____ (2010) (slip op., at 25), and our sovereign-immunity

decisions have traditionally warned against “ ‘anomalous

and unheard-of proceedings or suits,’ ” Alden, 527 U. S., at

727 (quoting Hans, 134 U. S., at 18).

Novelty, however, is often the consequence of past con

stitutional doubts, but we have no reason to believe that is

the case here. In order to invoke the Ex parte Young

exception to sovereign immunity, a state agency needs two

things: first, a federal right that it possesses against its

parent State; and second, authority to sue other state

officials to enforce that right, free from any internal veto

wielded by the state government. These conditions will

rarely coincide—and at least the latter of them cannot

exist without the consent of the State that created the

agency and defined its powers. See post, at 3–4

(KENNEDY, J., concurring). We are unaware that the

necessary conditions have ever presented themselves

except in connection with the DD and PAIMI Acts, and the

parties have referred us to no examples.8 Thus, the ap

——————

exercise of Congress’s enumerated powers. As JUSTICE KENNEDY ob

serves, whether the Acts run afoul of some other constitutional pro

vision (i.e., besides the Eleventh Amendment) “cannot be permitted

to distort the antecedent question of jurisdiction.” Post, at 5 (concur

ring opinion).

8 We think greatly exaggerated the dissent’s concern that, “[g]iven the

number of state agencies across the country that enjoy independent

litigating authority,” today’s decision “could potentially lead to all sorts

of litigation in federal courts addressing internal state government

Cite as: 563 U. S. ____ (2011) 13

Opinion of the Court

parent novelty of this sort of suit does not at all suggest its

unconstitutionality. In any event, we are satisfied, for the

reasons we have explained, that—novelty notwithstand

ing—the principles undergirding the Ex parte Young doc

trine support its application to actions of this kind.

* * *

Like the Court of Appeals, we are mindful of the central

role autonomous States play in our federal system, and

wary of approving new encroachments on their sover

eignty. But we conclude no such encroachment is occa

sioned by straightforwardly applying Ex parte Young to

allow this suit. It was Virginia law that created VOPA

and gave it the power to sue state officials. In that cir

cumstance, the Eleventh Amendment presents no obstacle

to VOPA’s ability to invoke federal jurisdiction on the

same terms as any other litigant.

We reverse the judgment of the Court of Appeals and

remand the case for further proceedings consistent with

this opinion.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or

decision of this case.

——————

disputes.” Post, at 11. Such litigation cannot occur unless the state

agency has been given a federal right of its own to vindicate (as VOPA

alleges it has been given under the highly unusual statute at issue

here).

Cite as: 563 U. S. ____ (2011) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–529

_________________

VIRGINIA OFFICE FOR PROTECTION AND ADVO-

CACY, PETITIONER v. JAMES W. STEWART, III,

COMMISSIONER, VIRGINIA DEPARTMENT

OF BEHAVIORAL HEALTH AND DE-

VELOPMENTAL SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[April 19, 2011]

JUSTICE KENNEDY, with whom JUSTICE THOMAS joins,

concurring.

Ex parte Young, 209 U. S. 123 (1908), recognized a

narrow limitation on state sovereign immunity, permitting

railroad stockholders to enjoin enforcement of unconsti

tutional rate regulations. That negative injunction was

nothing more than the pre-emptive assertion in equity of a

defense that would otherwise have been available in the

State’s enforcement proceedings at law. Id., at 165–166;

see also Harrison, Ex Parte Young, 60 Stan. L. Rev. 989,

997–999 (2008).

The Court has expanded the Young exception far beyond

its original office in order “to vindicate the federal interest

in assuring the supremacy of [federal] law,” Green v.

Mansour, 474 U. S. 64, 68 (1985), but not without careful

attention in each case to the sovereign interests of the

State. See Verizon Md. Inc. v. Public Serv. Comm’n of

Md., 535 U. S. 635, 649 (2002) (KENNEDY, J., concurring).

In Edelman v. Jordan, 415 U. S. 651 (1974), for example,

the Court applied the exception to an affirmative prospec

tive order but not to equitable restitution, for the latter

was too similar to an award of damages against the State.

2 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

KENNEDY, J., concurring

Id., at 668; see Pennhurst State School and Hospital v.

Halderman, 465 U. S. 89, 103 (1984) (“Under the theory

of Young, such a suit [for restitution] would not be one

against the State since the federal-law allegation would

strip the state officer of his official authority. Neverthe

less, retroactive relief was barred by the Eleventh

Amendment”). And Pennhurst declined to extend Young

to suits alleging a state-law violation, for without the need

to ensure the supremacy of federal law there was no justi

fication for restricting state sovereignty. 465 U. S., at

105–106.

The “straightforward inquiry” of Verizon Md. derives

from Edelman and Pennhurst, both of which defined im

portant limits on Young in order to respect state sover

eignty while still adhering to principles necessary to im

plement the Supremacy Clause. As a result, Verizon Md.

incorporates the very balancing it might at first seem to

reject. Verizon Md. itself was an easy case, for it involved

the same kind of preenforcement assertion of a defense

that was at issue in Young. But when Young’s application

is explored in novel contexts, as in Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U. S. 261 (1997), and also in this case,

the inquiry “proves more complex,” Verizon Md., supra, at

648 (KENNEDY, J., concurring).

In this case, in my view, the Virginia Office for Protec

tion and Advocacy may rely on Young, despite the some

what striking novelty of permitting a state agency to sue

officials of the same State in federal court. In the posture

of the case as it comes before the Court, it must be as

sumed that VOPA has a federal right to the records it

seeks, and so the extension of Young would vindicate the

Supremacy Clause. To be balanced against this important

interest is the need to preserve “the dignity and respect

afforded a State, which the immunity is designed to pro

tect.” Coeur d’Alene, supra, at 268. Permitting a state

agency like VOPA to sue officials of the same State does

Cite as: 563 U. S. ____ (2011) 3

KENNEDY, J., concurring

implicate the State’s important sovereign interest in using

its own courts to control the distribution of power among

its own agents. But the affront to the State’s dignity is

diminished to some extent when it is noted that if the

State had elected the alternate course of designating a

private protection and advocacy system it then would have

avoided any risk of internal conflict while still participat

ing in the federal program. The availability of that alter

nate course does not, in my view, weigh much in favor of

the validity of the underlying federal scheme, but the only

question here is the reach of the Young exception.

Virginia’s concern that the holding here upsets the

federal balance is further mitigated by the various protec

tions built into the structure of federal litigation to ensure

that state officials do not too often call upon the federal

courts to resolve their intramural disputes.

First, and most important, state law must authorize an

agency or official to sue another arm of the State. If

States do not wish to see their internal conflicts aired in

federal court, they need not empower their officers or

agencies to sue one another in a federal forum. And if

state officers are not by state law empowered to sue, they

may invoke federal jurisdiction only in their personal

capacities.

Second, to the extent there is some doubt under state

law as to an officer’s or agency’s power to sue, or any other

state-law issue that may be dispositive, federal courts

should abstain under Railroad Comm’n of Tex. v. Pullman

Co., 312 U. S. 496 (1941). Pullman recognizes the impor

tance of state sovereignty by limiting federal judicial

intervention in state affairs to cases where intervention is

necessary. If an open question of state-law would resolve

a dispute, then federal courts may wait for the resolution

of the state-law issue before adjudicating the merits.

Likewise, certification of questions of state law to the state

courts may pretermit an otherwise sensitive federal con

4 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

KENNEDY, J., concurring

troversy. Lehman Brothers v. Schein, 416 U. S. 386, 391

(1974) (Certification “helps build a cooperative judicial

federalism”).

Finally, federal law does not often create rights for state

officials or agencies to assert against other arms of the

State. True, officials may assert that their personal fed

eral rights are violated by unlawful state action, for exam

ple where the State engages in discriminatory employ

ment practices. But the statutory framework in the case

now before the Court is unusual in that it vests a state

agency itself with federal rights against the State. Stat

utes tend to protect the rights of individuals, not officers

or agencies, and the Constitution’s rights-creating Clauses

protect persons rather than officers. Because the Young

exception is available only to those who assert federal

violations, the paucity of federal rights vested in govern

ment officials makes the scope of the holding here a nar

row one.

All this is simply to underscore that the program at

issue may present constitutional questions but that the

parties do not raise them in this litigation. Virginia does

not argue, for example, that Congress exceeded its spend

ing power under Article I, §8 by forcing a state that wishes

to designate a public agency as its advocacy system to

allow intramural suits like the instant one or by requiring

that the agency be structured as Congress directs. E.g., 42

U. S. C. §15043(a)(2)(G) (system must “be independent of

any agency that provides treatment, services, or habilita

tion to individuals with developmental disabilities”);

§15044(a)(2) (“[N]ot more than 1/3 of the members of the

governing board may be appointed by the chief executive

officer of the State”). Young—a court-made doctrine based

on convenience, fiction, or both—neither implicates nor

subsumes these more fundamental concerns regarding the

excessive exercise of federal power. The Court should be

most cautious before deciding cases that might later lead

Cite as: 563 U. S. ____ (2011) 5

KENNEDY, J., concurring

to a general principle that the National Government can

condition receipt of funds on the State’s agreement to

make far-reaching changes with respect to its governmen

tal structure or its basic policies of governance in matters

within its special competence. Assuming, as the Court

must, that the statutes here are constitutional, the narrow

question is whether VOPA may rely on Young to avoid the

sovereign immunity bar.

One might doubt whether the constitutional question

may be so severed from the Young analysis. The Court

wields Young in the name of the Supremacy Clause only to

vindicate important federal rights. Perhaps this Court

should not extend the fiction in the name of claims that

may rest on unconstitutional foundations. This concern is

misplaced. The canon of constitutional avoidance directs

courts to prefer the interpretation of a statute that pre

serves its validity, but the specter of a statute’s unconsti

tutionality cannot be permitted to distort the antecedent

question of jurisdiction. Courts interpret and evaluate a

statute only after confirming their authority to adjudicate

the case before them. To decline to adjudicate a federal

right for fear of its potential unconstitutionality is in effect

to invalidate the right in the quest to save it. The Court

should not permit the commission of acts that violate a

federal right on the mere suspicion that Congress acted

beyond its authority. Because the suit must be assumed

to vindicate the Supremacy Clause and poses no serious

affront to state sovereignty in light of the options available

to the State under the program, it may proceed.

With these observations, I join the Court’s opinion.

Cite as: 563 U. S. ____ (2011) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–529

_________________

VIRGINIA OFFICE FOR PROTECTION AND ADVO-

CACY, PETITIONER v. JAMES W. STEWART, III,

COMMISSIONER, VIRGINIA DEPARTMENT

OF BEHAVIORAL HEALTH AND DE-

VELOPMENTAL SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[April 19, 2011]

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO

joins, dissenting.

Today the Court holds that a state agency may sue

officials acting on behalf of the State in federal court. This

has never happened before. In order to reach this unset

tling result, the Court extends the fiction of Ex parte

Young—what we have called an “empty formalism”—well

beyond the circumstances of that case. Because I cannot

subscribe to such a substantial and novel expansion of

what we have also called “a narrow exception” to a State’s

sovereign immunity, I respectfully dissent.

I

A

“The federal system established by our Constitution

preserves the sovereign status of the States.” Alden v.

Maine, 527 U. S. 706, 714 (1999). As confirmed by the

Eleventh Amendment, “[a]n integral component of that

residuary and inviolable sovereignty” is the States’ “im

munity from private suits.” Federal Maritime Comm’n v.

South Carolina Ports Authority, 535 U. S. 743, 751–753

(2002) (internal quotation marks omitted); Hans v. Louisi

2 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

ROBERTS, C. J., dissenting

ana, 134 U. S. 1, 13 (1890) (“ ‘It is inherent in the nature of

sovereignty not to be amenable to the suit of an individual

without its consent’ ” (quoting The Federalist No. 81 (A.

Hamilton))). “The preeminent purpose of state sovereign

immunity is to accord States the dignity that is consistent

with their status as sovereign entities.” Federal Maritime

Comm’n, supra, at 760. Accordingly, any time a State is

haled into federal court against its will, “the dignity and

respect afforded [that] State, which [sovereign] immunity

is designed to protect, are placed in jeopardy.” Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 268 (1997).

The immunity does not turn on whether relief will be

awarded; “[t]he Eleventh Amendment is concerned not

only with the States’ ability to withstand suit, but with

their privilege not to be sued.” Puerto Rico Aqueduct and

Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139,

147, n. 5 (1993). See Federal Maritime Comm’n, supra, at

769 (“the primary function of sovereign immunity is not to

protect state treasuries, but to afford the States the dig

nity and respect due sovereign entities” (citation omitted)).

Because of the key role state sovereign immunity plays

in our federal system, the Court has recognized only a few

exceptions to that immunity. The sole one relevant here is

the “narrow exception,” Seminole Tribe of Fla. v. Florida,

517 U. S. 44, 76 (1996), established by our decision in Ex

parte Young, 209 U. S. 123 (1908). In Ex parte Young, the

Court held that private litigants could seek an injunction

in federal court against a state official, prohibiting him

from enforcing a state law claimed to violate the Federal

Constitution. See id., at 159–168. As we have often ob

served, Ex parte Young rests on the “obvious fiction,”

Coeur d’Alene Tribe, supra, at 270, that such a suit is not

really against the State, but rather against an individual

who has been “stripped of his official or representative

character” because of his unlawful conduct, Ex parte

Cite as: 563 U. S. ____ (2011) 3

ROBERTS, C. J., dissenting

Young, supra, at 159–160.1

While we have consistently acknowledged the important

role Ex parte Young plays in “promot[ing] the vindication

of federal rights,” we have been cautious not to give that

decision “an expansive interpretation.” Pennhurst State

School and Hospital v. Halderman, 465 U. S. 89, 105, 102

(1984). Indeed, the history of our Ex parte Young juris

prudence has largely been focused on ensuring that this

narrow exception is “narrowly construed,” 465 U. S., at

114, n. 25. We have, for example, held that the fiction of

Ex parte Young does not extend to suits where the plaintiff

seeks retroactive relief, Edelman v. Jordan, 415 U. S. 651,

678 (1974); where the claimed violations are based on

state law, Pennhurst, supra, at 106; where the federal law

violation is no longer “ongoing,” Green v. Mansour, 474

U. S. 64, 71 (1985); “where Congress has prescribed a

detailed remedial scheme for the enforcement against a

State” of the claimed federal right, Seminole Tribe, supra,

at 74; and where “special sovereignty interests” are impli

cated, Coeur d’Alene Tribe, supra, at 281.

We recently stated that when “determining whether the

doctrine of Ex parte Young avoids an Eleventh Amend

ment bar to suit, a court need only conduct a straightfor

ward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly

characterized as prospective.” Verizon Md. Inc. v. Public

Serv. Comm’n of Md., 535 U. S. 635, 645 (2002) (internal

quotation marks omitted). But not every plaintiff who

complies with these prerequisites will be able to bring suit

under Ex parte Young. Indeed, in Verizon itself the Court

went beyond its so-called straightforward inquiry in con

——————

1 Ex parte Young also rests on the “well-recognized irony that an offi

cial’s unconstitutional conduct constitutes state action under the

Fourteenth Amendment but not the Eleventh Amendment.” Pennhurst

State School and Hospital v. Halderman, 465 U. S. 89, 105 (1984)

(internal quotation marks omitted).

4 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

ROBERTS, C. J., dissenting

sidering whether Ex parte Young applied. After deciding

the plaintiffs “clearly satisfie[d]” the “straightforward

inquiry,” the Court went on to examine whether Congress

had created a detailed remedial scheme like the one in

Seminole Tribe. 535 U. S., at 645, 647–648 (internal

quotation marks omitted). Only after determining that

Congress had not done so did the Court conclude that the

suit could go forward under Ex parte Young.

If Verizon’s formulation set forth the only requirements

for bringing an action under Ex parte Young, two of our

recent precedents were wrongly decided. In Seminole

Tribe, the Court acknowledged that it had often “found

federal jurisdiction over a suit against a state official when

that suit seeks only prospective injunctive relief in order

to end a continuing violation of federal law.” 517 U. S., at

73 (internal quotation marks omitted). The Court held,

however, that the “situation presented” there was “suffi

ciently different from that giving rise to the traditional Ex

parte Young action so as to preclude the availability of

that doctrine.” Ibid.2

In Coeur d’Alene Tribe, the Court recognized that an

“allegation of an ongoing violation of federal law where the

requested relief is prospective is ordinarily sufficient to

invoke the Young fiction.” 521 U. S., at 281 (emphasis

added). The Court held, however, that the action could

not proceed under Ex parte Young because it implicated

“special sovereignty interests”—in that case, the State’s

——————

2 While I agree that in Seminole Tribe “we refused to permit suit to

proceed” under Ex parte Young because Congress “had foreclosed

recourse to the doctrine,” ante, at 7, n. 3, that simply confirms my point

that the availability of Young depends on more than just whether

Verizon’s prescribed inquiry is satisfied. In short, Seminole Tribe

makes clear that a plaintiff who files a “complaint alleg[ing] an ongoing

violation of federal law and seeks relief properly characterized as

prospective,” Verizon, 535 U. S., at 645 (internal quotation marks

omitted), may nonetheless be barred from pursuing an action under

Young.

Cite as: 563 U. S. ____ (2011) 5

ROBERTS, C. J., dissenting

property rights in certain submerged lands. 521 U. S., at

281–283.

As we explained in Papasan v. Allain, 478 U. S. 265

(1986), there are “certain types of cases that formally meet

the Young requirements of a state official acting inconsis

tently with federal law but that stretch that case too far

and would upset the balance of federal and state interests

that it embodies.” Id., at 277. This is one of those cases.

In refusing to extend Ex parte Young to claims that

involve “special sovereignty interests,” the Court in Coeur

d’Alene Tribe warned against a rote application of the Ex

parte Young fiction:

“To interpret Young to permit a federal-court action

to proceed in every case where prospective declaratory

and injunctive relief is sought against an officer,

named in his individual capacity, would be to adhere

to an empty formalism and to undermine the principle

. . . that Eleventh Amendment immunity represents a

real limitation on a federal court’s federal-question ju

risdiction. The real interests served by the Eleventh

Amendment are not to be sacrificed to elementary me

chanics of captions and pleading. Application of the

Young exception must reflect a proper understanding

of its role in our federal system and respect for state

courts instead of a reflexive reliance on an obvious fic

tion.” 521 U. S., at 270.

B

It is undisputed that petitioner’s complaint alleges an

ongoing violation of federal law by a state official and

seeks only prospective relief. If this were a “traditional Ex

parte Young action,” Seminole Tribe, supra, at 73, peti

tioner might very well be able to pursue its claims under

that case. This, however, is anything but a traditional

case—and petitioner is anything but a typical Ex parte

Young plaintiff.

6 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

ROBERTS, C. J., dissenting

Unlike the plaintiffs in Ex parte Young—and, for that

matter, unlike any other plaintiff that has ever sought to

invoke Ex parte Young before this Court—petitioner is a

state agency seeking to sue officials of the same State in

federal court. The Court is troubled by this novelty, ante

at 12–13, but not enough. See Free Enterprise Fund v.

Public Company Accounting Oversight Bd., 561 U. S. ___,

___ (2010) (slip op., at 25) (“Perhaps the most telling indi

cation of [a] severe constitutional problem . . . is the lack of

historical precedent” (internal quotation marks omitted));

cf. Alden, 527 U. S., at 743–745; Printz v. United States,

521 U. S. 898, 905–910, 918, 925 (1997). This is especially

true in light of the “presumption” we articulated more

than 120 years ago in Hans v. Louisiana, that States are

immune from suits that would have been “anomalous and

unheard of when the Constitution was adopted.” Hans,

134 U. S., at 18; see also Alden, supra, at 727 (invoking

presumption).

Accordingly, when determining whether to lift the bar of

sovereign immunity, we have “attribute[d] great signifi

cance” to the absence of analogous suits “at the time of the

founding or for many years thereafter.” Federal Maritime

Comm’n, 535 U. S., at 755. This sort of suit was not only

anomalous and unheard of at the time of the founding; it

was anomalous and unheard of yesterday. The Hans

presumption applies here with full force.

The Court speculates that these suits have not previ

ously arisen because the necessary conditions—state

agencies pursuing a federal right free of internal state

veto—are themselves novel. See ante, at 12; see also ante,

at 3–4 (KENNEDY, J., concurring). Even if true, that sim

ply highlights the fact that this case is not suitable for

mere rote application of Ex parte Young.

In addition to its novel character, petitioner’s complaint

“conflicts directly with the principles of federalism that

underlie the Eleventh Amendment.” Pennhurst, 465 U. S.,

Cite as: 563 U. S. ____ (2011) 7

ROBERTS, C. J., dissenting

at 106. In Alden, we held that state sovereign immu-

nity prohibited Congress from authorizing “private suits

against nonconsenting States in their own courts.” 527

U. S., at 749. We explained that such power would permit

one branch of state government, the “State’s own courts,”

“to coerce the other branches of the State” and “to turn the

State against itself.” Ibid.

Here the Court goes further: this suit features a state

agency on one side, and state executive officials on the

other. The objection in Alden was that the Federal Gov

ernment could force the State to defend itself before itself.

Here extending Young forces the State to defend itself

against itself in federal court.

Both sides in this case exercise the sovereign power of

the Commonwealth of Virginia. Petitioner claims the title

of “The Commonwealth of Virginia” in its complaint, App.

10; respondents are state officials acting in an official

capacity. Whatever the decision in the litigation, one

thing is clear: The Commonwealth will win. And the

Commonwealth will lose. Because of today’s holding, a

federal judge will resolve which part of the Common

wealth will prevail.

Virginia has not consented to such a suit in federal

court; rather, petitioner has unilaterally determined that

this intramural dispute should be resolved in that forum.

This is precisely what sovereign immunity is supposed to

guard against. See ante, at 10 (“The specific indignity

against which sovereign immunity protects is the insult to

a State of being haled into court without its consent”).

That indignity is compounded when the State is haled into

federal court so that a federal judge can decide an internal

state dispute.

The Court is wrong to suggest that Virginia has no

sovereign interest in determining where such disputes will

be resolved. See ante, at 10–11, and n. 6. It is one thing

for a State to decide that its components may sue one

8 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

ROBERTS, C. J., dissenting

another in its own courts (as Virginia did here); it is quite

another thing for such a dispute to be resolved in federal

court against the State’s wishes. For this reason, the

Court’s examples of other suits pitting state entities

against one another are inapposite. In each of those hy

potheticals, the State consented to having a particular

forum resolve its internal conflict. That is not true here.3

In sum, the “special sovereignty interests” implicated

here make this case “sufficiently different from that giving

rise to the traditional Ex parte Young action so as to pre

clude the availability of that doctrine.” Seminole Tribe,

517 U. S., at 73. I would cling to reality and not extend

the fiction of Ex parte Young to cover petitioner’s suit.

II

The Court offers several justifications for its expansion

of Ex parte Young. None is persuasive.

The Court first contends that whether the Ex parte

Young fiction should be applied turns only on the “relief

sought” in a case. Ante, at 8–9 (internal quotation marks

omitted). The Court is correct that several of our prior

cases have focused on the nature of the relief requested.

See, e.g., Edelman, 415 U. S., at 664–671. That may well

be because “the difference between the type of relief

barred by the Eleventh Amendment and that permitted

——————

3 Sovereign immunity principles would of course not prohibit this

Court from reviewing the federal questions presented by this suit if it

had been filed in state court. See ante, at 11. We have held that “it is

inherent in the constitutional plan that when a state court takes

cognizance of a case, the State assents to appellate review by this Court

of the federal issues raised in the case whoever may be the parties to

the original suit, whether private persons, or the state itself.” McKes

son Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of

Business Regulation, 496 U. S. 18, 30 (1990) (internal quotation marks

and citation omitted). By contrast, there is nothing “inherent in the

constitutional plan” that warrants lower federal courts handling

intrastate disputes absent a State’s consent.

Cite as: 563 U. S. ____ (2011) 9

ROBERTS, C. J., dissenting

under Ex parte Young will not in many instances be that

between day and night.” Id., at 667. But the Court is

wrong to draw a negative implication from those cases and

categorically conclude that there can be no other basis for

determining whether to extend Ex parte Young’s fiction.

The thrust of the Court’s argument appears to be that,

because the relief sought here is no different from that

which could be sought in a suit by a private protection and

advocacy system, the doctrine of Ex parte Young should

also apply to a suit brought by a state system. Ante, at 7–

9. But private entities are different from public ones:

They are private. When private litigants are involved, the

State is not turned against itself.

Contrary to the Court’s suggestion, see ante, at 9, there

is indeed a real difference between a suit against the State

brought by a private party and one brought by a state

agency. It is the difference between eating and cannibal

ism; between murder and patricide. While the ultimate

results may be the same—a full stomach and a dead

body—it is the means of getting there that attracts notice.

I would think it more an affront to someone’s dignity to be

sued by a brother than to be sued by a stranger. While

neither may be welcomed, that does not mean they would

be equally received.

The Court also contends that petitioner’s ability to sue

state officials in federal court “is a consequence of Vir

ginia’s own decision to establish a public [protection and

advocacy] system.” Ibid. This cannot mean that Virginia

has consented to an infringement on its sovereignty. That

argument was rejected below, and petitioner did not seek

certiorari on that issue. See Virginia v. Reinhard, 565

F. 3d 110, 116–118 (CA4 2009); Pet. for Cert. i.

Instead the Court claims that “Virginia has only itself to

blame”—if it wanted to avoid its current predicament, it

could have chosen to establish a private entity instead.

Ante, at 9–10, and n. 5; see also ante, at 3 (KENNEDY, J.,

10 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

ROBERTS, C. J., dissenting

concurring). But I am aware of no doctrine to the effect

that an unconstitutional establishment is insulated from

challenge simply because a constitutional alternative is

available. And here the public and private systems are

not interchangeable alternatives in any event.

The Court’s analysis is also circular; it wrongly assumes

Virginia knew in advance the answer to the question

presented in this case. Only after concluding that Ex parte

Young applies to this arrangement—that for the first time

in history a state agency may sue an unwilling State in

federal court—can the Court suggest that Virginia know

ingly exposed its officers to suit in federal court.

In a similar vein, the Court asserts that because Vir

ginia law authorizes petitioner to exercise independent

litigating authority, petitioner should be treated the same

“as any other litigant.” Ante, at 13. But petitioner is not

like any other litigant. While it is true petitioner enjoys

some independence from the State’s executive branch, that

does not mean petitioner is independent from the State.

As noted, petitioner certainly views itself as “The Com

monwealth of Virginia,” App. 10, and would presumably

invoke sovereign immunity itself if sued. As a matter of

sovereign immunity law, it should make no difference how

a State chooses to allocate its governmental powers among

different state agencies or officials.

The Court is wrong to suggest that simply because

petitioner possesses independent litigating authority, it

may sue state officials in federal court. See ante, at 13

(“the Eleventh Amendment presents no obstacle” since it

“was Virginia law that created [petitioner] and gave it the

power to sue state officials”). There is more to this case

than merely whether petitioner needs the approval of the

Attorney General to sue, and the Virginia Code provisions

cited by the Court say nothing about actions against the

State in federal court.

If independent litigating authority is all that it takes,

Cite as: 563 U. S. ____ (2011) 11

ROBERTS, C. J., dissenting

then scores of state entities now “suddenly possess the

authority to pursue Ex parte Young actions against other

state officials” in federal court. Reinhard, supra, at 124.

There would be no Eleventh Amendment impediment to

such suits. Given the number of state agencies across the

country that enjoy independent litigating authority, see,

e.g., Brief for State of Indiana et al. as Amici Curiae 11–

13, the Court’s decision today could potentially lead to all

sorts of litigation in federal courts addressing internal

state government disputes.

And there is also no reason to think that the Court’s

holding is limited to state agency plaintiffs. According to

the Court’s basic rationale, state officials who enjoy some

level of independence could as a matter of federal law

bring suit against other state officials in federal court.

Disputes that were formerly resolved in state cabinet

rooms may now appear on the dockets of federal courts.

* * *

No one questions the continued vitality or importance of

the doctrine announced in Ex parte Young. But Ex parte

Young was about affording relief to a private party against

unconstitutional state action. It was not about resolving

a dispute between two different state actors. That is a

matter for the State to sort out, not a federal judge.

Our decision in Chisholm v. Georgia, 2 Dall. 419

(1793)—permitting States to be sued by private parties in

federal court—“created such a shock of surprise” through

out the country “that the Eleventh Amendment was at

once proposed and adopted.” Principality of Monaco v.

Mississippi, 292 U. S. 313, 325 (1934). It is fair to say that

today’s decision will probably not trigger a similar re

sponse. But however much their practical functions and

prominence may have changed in the past 218 years, the

States remain a vital element of our political structure.

Sovereign immunity ensures that States retain a stature

12 VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY

v. STEWART

ROBERTS, C. J., dissenting

commensurate with their role under the Constitution.

Allowing one part of the State to sue another in federal

court, so that a federal judge decides an important dispute

between state officials, undermines state sovereignty in

an unprecedented and direct way. The fiction of Ex parte

Young should not be extended to permit so real an

intrusion.

Because I believe the Court’s novel expansion of Ex

parte Young is inconsistent with the federal system estab

lished by our Constitution, I respectfully dissent.