Opinion

Demery v. Kupperman

  • 735 F.2d 1139
Court
Court of Appeals for the Ninth Circuit
Filed
Jun 22, 1984
Status
Published
Author
Panner
On the bench
Panner, Reinhardt
Cited by
199 cases

holding that even if neither party has raised an Eleventh Amendment objection to a federal court’s subject matter jurisdiction, the court has an obligation to fully consider the issue sua sponte

How later courts described this case

  • holding that even if neither party has raised an Eleventh Amendment objection to a federal court’s subject matter jurisdiction, the court has an obligation to fully consider the issue sua sponte
  • holding that a deputy attorney general who allegedly induced false testimony 28 1 was absolutely immune even though “inducing false testimony is wrongful and 2 indefensible”
  • construing as individual capacity suit an action against state medical board superfi sor who enforced allegedly ineffective disciplinary order of board
  • holding that a deputy attorney general should be granted absolute immunity with regard to administrative disciplinary proceeding against a doctor

Written by the judges who cited it.

The opinion

PANNER, District Judge,

Concurring:

I concur in all but part II.D. of this opinion. That part, to my mind, goes beyond what is necessary. The striking differences between Pennhurst II and this ease make it unwise to engage in a detailed discussion of the relationship between Pennhurst II, Edelman, and Sckeuer.

Pennhurst II holds that the eleventh amendment bars federal courts from compelling state officials to conform their conduct to state law. In that case, state officials were sued only in their official capacities. Here, by contrast, Rowland and Co-sentino are sued in their individual capacities. In Pennhurst II, the Supreme Court considered a claim based on state law. Here, on the other hand, we consider a federal constitutional claim based on a federal statute, 42 U.S.C. § 1983 .

The majority is concerned about the following statement from Pennhurst II: “Under Edelman v. Jordan, supra, a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court.” 104 S.Ct. at 920. The panel concedes that language is bothersome only “if interpreted literally____” Supra, at 2666.

The Court specifically reiterated that a suit challenging the constitutionality of a state official’s action is not one against the state for eleventh amendment purposes. 104 S.Ct. at 909. Obviously, the quoted language must be interpreted in light of the issues that were involved. This interpretation was neither briefed nor argued. “Clarifying” Pennhurst II should be done only where necessary.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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