Amicus Curiae Brief — Blessing v. Freestone

(5

No. 95-1441

Supreme Court of the Ani

OCTOBER TERM, 1996

>.

LINDA J. BLESSING,

Petitioner,

CATHY FREESTONE, et ai.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE ARIZONA CIVIL LIBERTIES

UNION IN SUPPORT OF RESPONDENTS

SS

Christopher A. Hansen

(Counsel of Record)

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Erwin Chemerinsky

University of Southern California

Law School

University Park

Los Angeles, California 90089

(213) 740-2539

TABLE OF CONTENTS

Page

py PU Ot . Eran ill

es SE cc vba a edb ewes tee e's cals l

STATEMENT OF THE CASE .. 0... cc cle cc ceces l

SUMMARY OF ARGUMENT ................. 3

ET anak ch nae bo aes Bb k ee wae 6 wh oo 5

I. THE COURT SHOULD REJECT PETI-

TIONER’S INVITATION TO REVERSE

OR SHARPLY LIMIT THE HOLDING

OF MAINE v. THIBOUTOT ............. 5

A. Maine v. Thiboutot Was Correctly De-

DT betes ae en aeewawkeeaes 4e 5

1. Plain Language Of §1983 ........ 7

2. Legislative History Of §1983 ...... 8

3. Petitioner's Proposed Alternatives

| ey eae 12

B. The Standards Required For Violating

The Principles Of Stare Decisis Have

i Sects Le wee ae eee ab 15

Il. THE COURT SHOULD REJECT PETI-

TIONER’S INVITATION TO REVERSE

OR SHARPLY LIMIT THE HOLDING

Pf, . § | 18

Page

A. Injunctive And Declaratory Relief

Against State Officers Is Not Barred,

Even If The State Government Is The

"Real Party In Interest" ............. 20

B. Seminole Tribe v. Florida Creates A

Narrow Exception To Ex Parte Young... 23

CONCLUSION onc cccvccescueeueu eee 27

il

TABLE OF AUTHORITIES

Cases

Arizona v. Rumsey,

EEE ere

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

ee wesc ee ecceceecces

Chapman v. Houston Welfare

Rights Organization,

a she cece cees caceeees passim

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821)... 0.2.0... c ee eee.

Continental Casualty Co. v.

United States,

EE A

Cuyler v. Adams,

as ek sec oneacece

Deffeback v. Hawke,

Cee cae ccces

Dennis v. Higgins,

~~~ sccsccceccosccccces 13, 14,

Edelman v. Jordan,

a 6, 18,

Ex Parte Young,

PEM ES Cs cceecccececces: passim

Ford Motor Co. v. Dep't of

Treasury of Indiana,

tere cence

Page

Golden State Transit v. Los Angeles,

GO GS. Fe Gee 6 0 cesccvbsbsisécvacnciabs 18

Green v. Mansour,

Ge Ge Gin. 0.6 ccveniedéesd6 eeeubesenes 4

Greenwood v. Peacock,

Sp es EE 9 '0 060.0 bv aetodeeeenueeeees 6

Hague v. CIO,

Sy Ds Se cncccccedbvedteventsceuve 12

Hamilton v. Rathbone,

fo RC Rr ee ee 11

Livadas v. Bradshaw,

512 U.S. _, 114 S.Ct. 2068 (1994) ........... 14, 18

Maine v. Thiboutot,

¢ SY are rere ms i passim

McCulloch v. Maryland,

SF UE GS WD See Cee oc ceccwkbcceacnces x

McDonald v. Hovey,

Se, ED oc ascvecvadsiadacenb ee ous 11

McDonnell v. Cisneros,

fe TL | errr rT © 25

Middlesex County Sewerage Authority

v. National Sea Clammers Ass'n,

2) SF Fe eervyrr rr tee 18, 24, 25, 26

Mitchum v. Foster,

f & | Ee rp re ee A a ee 4

Monell v. New York City Dep't

of Social Services,

| | & of eee err ee. 4

iv

Monroe v. Pape,

ee ad ooo a du gee thse saabesd 7

New York v. United States,

Se Pe coi. cc ewenddd ees Cahaee oes 3

Owen v. City of Independence,

EI ee ee 6

Patterson v. McLean Credit Union,

I a te 6 oe wa ee deka peewee 15, 16

Pennhurst State School and

Hospital v. Halderman,

SP hc. «veh ophonedadwe nha cuape 14

Pennhurst State School and

Hospital v. Halderman,

ian tkeok «cou de haus eee kes 4, 21

Perez v. Ledesma,

8 ee 21, 22

Planned Parenthood v. Casey,

es i ceteschbausdawes caves 15, 23

Quern v. Jordan,

er ere er 6, 15

Runyon v. McCrary,

_ & aera re esp oe 17

Schweiker v. Chilicky,

ee ae oe ee ee ewe 18, 24

Seminole Tribe of Florida v. Florida,

ae Ge wn FE ee SOOO CRPSED ec ccccascces passim

Sterling v. Constantin,

eT oo a a od We 6 6 6 oh abe ord 3

Page

Suter v. Artist M.,

Se Ge SE 6 no ccanewees sGauewead 2, 17, 18

U.S. Term Limits, Inc. v. Thornton,

pe Gh ee Ce es EU ED. ocecpasdenetec 3

United States v. Bowen,

Se Es ne eccedvescaedeenteeens 11

United States v. Classic,

ee oo oo won ve db teneeweuesees 7,9

United States v. Price,

Be es SEs once ccuscutencuses ues 9

Vietor v. Arthur,

Se es GED 6 ov ca vebeendéabsdeesanee 11

Welch v. Texas Dep't of Highways

and Public Transportation,

ee es SE gs oc ek Gace 0 cence US Oe dh deae 15

Wilder v. Virginia Hospital Ass'n,

Ge, GEE 0 6 oti dwd ob + ced ceewba as 2, 18

Will v. Michigan Department

of State Police,

Ge ee 6 3 oo kud 66000000 0% 65 Woneees 25

Wright v. City of Roanoke Redevelop-

ment and Housing Authority,

See, GE oS 5 deidess Kenecenee 18, 25, 26

Constitutional Provisions

U.S. Constitution

A Re 2% ae eke bb.o.oe es 4 cthsmabdke eee 7

a Sa ey swe ees c0e 6eden'saneeie ee 3

— tS rere se. er 8

Statutes and Regulations

EE Wat caens de ddutncecaneestes 9

A ere re ry ee 12

in 6 ence bab eA CRs 12

Da #6 ose s bh.< ede eae iene 12

a. 4 «dees % 566 mame’ 12

Ss ewes tee babes ah ade ted 12

EE o's 24466 0 We EbSw ede eeneeeus 12

PE wn od eeée 60 hen 6h bake oun aeeken 9

PE ccawiusee Vade ede abkns hedent 9

Dt. is¢etabas oanedeees vn eeean ant 12

RE ei ee de ke aeehen eh ee ees 10, 12

i ie caawhas oes tae Oueu eee 9, 12

42 U.S.C. §§651-69

Title IV-D, Social Security Act .......... 1, 2, 26

a he os is gate aetna 17

nS <eeek unk e¢ Geese >eennaes passim

CE ties od's' cn etsatevessseuenet 16

Pub.L.No. 96-486,

i ne o. .. bs wee buh whkee as 12

1870 Enforcement Act

rn Me. coc ecesuabaceeees 9

Act of Feb. 13, 1801

$11, 2 Stat. 89, repealed by

Act of March 8, 1802, §1, 2 Stat. 132........... 8

Vii

Page

Civil Rights Act of 1866,

ch. 31, 14 Stat. 27

De 660660 ¢e.s 6abet600-00u bebe hs ee 8

ae dtevices <i vetsnaee t shGheeee ees 8

Judicial Code of 1911 |

* * 8 | fF eee 9

Ku Klux Act of 1871

8 4 rere rere er 9

Rev.Stat. §563(13) (1874) ................0.0. 9, 10

Rev.Stat. §629(16) (1874) ................05. 9, 10

Se EE 0° sn’ c'we cue bum ebatucs 9

rr ee ee 10

OU, SEP EEUU cvcveccecevocbeeeucesen 10

RP ere eee 10

ry sy cee 10

SG EE ok. oo ee a beau heur ads 10

Es oe vax ctu ceeseted tae cue 10

Pe PE on a-6 bc nodes eek aden denen 11

Legislative History

BED <n so 8 6 kc 4 ka oe kwabeeel 1]

EY IN Ss 0 ne ke bi enw bh ie a wie 1!

FY CU Es ain be co ccuabeues cd uuns 11

SF Gs CIEE kc vce cedvesdeeev cen 11

522 Comg.Res. 33314 (1976) 2... wee ccc ccces 16

Vili

122 Cong.Rec. 33315 (1976) ... 0... 6. cee eee ees 16

122 Cong.Rec. 35122 (1976) ........ 0c eee eees 16

Cong. Globe, 42d Cong..,

PE co. ac So eaees eC SR s tee Oe eee 4

Cong. Globe, 42d Cong..,

EE - 220 neo nsedkdebstensea ee 4

Cong. Globe, 42d Cong..,

i Cn on es ne bd ade é pe bewe 605 098 4

Cong. Globe, 42d Cong..,

iE Lin speck eo saeben ee bekeeee 4

Cong. Globe, 42d Cong.,

EE oo kre ce eee ee ehereccensess 4

Cong. Globe, 42d Cong.,

CE . ces ccesh eee nesintesiasss 4

§.325, 100th Cong.,

PE 6 otc svceeecneesecbbessees 17

S.436, 99th Cong.

snes eae es RRR SENS CORN ONS 17

S.584, 97th Cong.,

ET: . cet es cn Seuss eceoect recess 17

S.Rep.No. 94-1011,

94th Cong., 2d Sess. 4,

reprinted in 5 U.S. Code Cong.

and Admin. News 5908 (1976) ..............5445. 16

Title LXXIII, Chap. VII,

SCE)» viverceceveravvesecesan 1]

ix

Other Authorities

Comment, "Section 1983 and the

Private Enforcement of Federal

Statutes: A New Frontier for

the Civil War Legislation,"

18 Willamette L.Rev. 433 (1982) ................ 12

Dwan, R., and Feidler, E..,

"The Federal Statutes:

Their History and Use,"

ee ES PE no oho Wacedaecawaeews 12

Endlich, A COMMENTARY ON THE

INTERPRETATION OF STATUTES (1888) ............ 1]

Note, "The Application of

Section 1983 to the Violation

of Federal Statutory Rights:

Maine v. Thiboutot,"

Be ee ee es Ge ED nc ccc tnd see tecuces 16

Price, M., and Bitner, H..,

EFFECTIVE LEGAL RESEARCH

ES oie ous o's 44 obs eek ee dae 12

THE FEDERALIST PAPERS

See Ge a EE so oa eo Dane bso bes oe eke 8

Wright, C., HANDBOOK OF THE LAW

OF FEDERAL CourTs (2d ed. 1970) .............. 22

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation’s civil

rights laws. The Arizona Civil Liberties Union is one of its

statewide affiliates. This case raises issues of special impor-

tance to the ACLU because petitioner has called into ques-

tion both Maine v. Thiboutot, 448 U.S. 1 (1980), and Ex

Parte Young, 209 U.S. 123 (1908), two of the principal ve-

hicles for civil rights litigation in this country. We urge the

Court to affirm the decision below, and to reject petitioner's

view that state officials cannot be held accountable in feder-

al court for violating federal law.

STATEMENT OF THE CASE

This action for declaratory and injunctive relief was

brought on behalf of custodial parents and their children. It

challenges the failure of Arizona officials to comply with

the mandates of Title IV-D of the Social Security Act, 42

U.S.C. §§651-69. Pursuant to Title IV-D, the federal gov-

ernment provides Arizona with funding for child support

programs. In return, Arizona is obligated to provide certain .

child support services designed, inter alia, to recover child

support payments from delinquent parents. As described by

the lower court, the federally mandated services include a

system for the "establishment of paternity, enforcement of

support orders, and parent locator services." Freestone v.

Cowan, 68 F.3d 1141, 1143 (9th Cir. 1995).

The complaint filed by respondents in this case alleges

that Arizona officials were not in fact providing the services

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3.

l

that federal law requires. Specifically, the complaint sets

forth the individual stories of several mothers who, despite

repeated attempts, could not obtain the mandated Title IV-D

services from Arizona officials. It also recites statistics to

show that the particular problems identified in the complaint

are serious and widespread.

Petitioner moved to dismiss on the grounds that the par-

ents and children who initiated this suit have no private

right of action to enforce the federal mandates. The district

court agreed with petitioner, treating it as a motion for sum-

mary judgment. The court of appeals reversed, holding that

Congress did not intend to foreclose private enforcement of

Title IV-D.

In this Court, petitioner presses three arguments: (1)

there is no private right of action under the traditional stand-

ards for resolving that issue, most recently articulated in

Wilder v. Virginia Hospital Ass'n, 496 U.S. 498 (1990), and

Suter v. Artist M., 503 U.S. 347 (1992); (2) this Court

should reverse or sharply limit the holding in Maine v.

Thiboutot, 448 U.S. 1, that 42 U.S.C. §1983 provides a -

private right of action to enforce federal statutory rights as

well as federal constitutional guarantees; and (3) this Court

should reverse or sharply limit the holding in Ex Parte

Young, 209 U.S. 123, that the Eleventh Amendment does

not prohibit federal courts from requiring state officials to

comply with federal !aw.

Amici agree with respondents that a private right of

action exists to enforce Title IV-D under the standards of

Wilder and Suter. However, this brief focuses on petition-

er’s challenge to Maine v. Thiboutot and Ex Parte Young.

If successful, that challenge would dramatically alter legal

structure established by this Court over the last century to

enforce rights created by federal law.

ss a . -

SUMMARY OF ARGUMENT

Although the word "federalism" does not appear in the

Constitution, there is no doubt that it is crucial to the Amer-

ican constitutional system. Federalism refers to the division

of powers between the national and the state governments.

Under our constitutional system, each has its own sphere of

authority and responsibility. Properly understood, therefore,

federalism is as much about preserving the power and re-

sponsibility of the federal government as it is about preserv-

ing the power and responsibility of the states.

Petitioner emphasizes one aspect of federalism: safe-

guarding state governments from federal encroachments.

The Tenth Amendment’s limits on Congress and the Elev-

enth Amendment’s restrictions on the federal judicial power

reflect this constitutional concern. See, e.g., Seminole Tribe

of Florida v. Florida, 517 U.S. __, 116 S.Ct. 1114 (1996);

New York v. United States, 505 U.S. 144 (1992).

Petitioner, however, ignores the other aspect of federal-

ism: protecting the interests of the national government.

The single most important constitutional provision concern-

ing federalism is found in Article VI: "The Constitution,

and the Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the

Supreme Law of the Land." In short, federalism is also, in

major part, about ensuring the supremacy of federal law.

Sterling v. Constantin, 287 U.S. 378, 397 (1932); see also

U.S. Term Limits, Inc. v. Thornton, 514 U.S. __, __, 115

S.Ct. 1842, 1872 (1995)(Kennedy, J., concurring)(emphasiz-

ing that federalism is about protecting both state sovereignty

and the interests of the national government).

There is no doubt that §1983 was meant to empower

the federal courts to review state and local actions to ensure

their compliance with federal law. During the debates pre-

ceding enactment of §1983, one Congressman and Senator

after another so declared. Cong. Globe, 42d Cong., Ist

Sess. 321 (1871)(remarks of Rep. Stoughton); see also id. at

374-76 (remarks of Rep. Lowe); id. at 459 (remarks of Rep.

Coburn); id. at 609 (remarks of Sen. Pool); id. at 687 (re-

marks of Sen. Surz); id. at 691 (remarks of Sen. Edmunds).

Likewise, this Court has often recognized the critical impor-

tance of federal court review in assuring state compliance

with the Constitution and laws of the United States. See,

e.g., Mitchum v. Foster, 407 U.S. 225 (1972).

Contrary to petitioner’s argument in this case, Ex Parte

Young and Maine v. Thiboutot are not at war with federal-

ism, they are essential to its preservation. It is through suits

against state officers pursuant to Ex Parte Young that statc

compliance with federal law is achieved. As the Court

noted in Pennhurst State School and Hospital v. Halderman,

465 U.S. 89, 105 (1984)(Pennhurst II): “Our decisions re-

peatedly have emphasized that the Young doctrine rests on

the need to promote the vindication of federal rights." /d. at

105. Or, as the Court explained in Green v. Mansour, 474

U.S. 64, 68 (1986): "[T]he availability of prospective relief

of the sort awarded in Ex Parte Young gives life to the su-

premacy clause.”

Likewise, it is through Maine v. Thiboutot that suits can

be brought, pursuant to §1983, to ensure state and local

compliance with federal statutes. Thus, after again review-

ing the legislative history of §1983 in Maine v. Thiboutot,

the Court concluded that "there can be no doubt that

[$1983] was intended to provide a remedy, to be broadly

construed, against all forms of official violation of federally

protected rights." 448 U.S. at 5, quoting Monell v. New

a" Dep't of Social Services, 436 U.S. 658, 700-701

).

Petitioner's brief is breathtaking in its willingness to

disregard this Court’s well-established jurisprudence and im-

4

pose new restrictions on federal court jurisdiction. For all

practical purposes, petitioner seeks to overrule Ex Parte

Young by contending that the Eleventh Amendment bars all

suits, including suits for injunctive and declaratory relief,

where it is the state that is the real party in interest. Pet.Br.

at 25. In Young itself, the State of Minnesota was the real

party in interest: the injunction against Edward Young was

to prevent the enforcement of a state statute. Indeed, in vir-

tually every case, suits pursuant to Ex Parte Young are

brought to enjoin enforcement of a state law or policy; ulti-

mately, the state is the real party in interest in all these

cases. In addition, petitioner expressly calls for this Court

to overrule its decision in Maine v. Thiboutot, 448 U.S. 1.

Pet.Br. at 30-48.

The radical changes urged by petitioner would dramati-

cally upset the allocation of power between the national and

state governments by allowing states to violate federal law

with impunity. Instead of promoting federalism, the

changes urged by petitioner would do exactly the opposite

and would abandon the framers’ plan for a national govern-

ment supreme over the states.

ARGUMENT

I. THE COURT SHOULD REJECT PETITIONER’S

INVITATION TO REVERSE OR SHARPLY LIMIT

THE HOLDING OF MAINE v. THIBOUTOT

A. Maine v. Thiboutot Was Correctly Decided

Petitioner argues that this Court should reverse the hold-

ing of Maine v. Thiboutot and hold instead that §1983 either

provides no private right of action to enforce federal statuto-

ry guarantees, or that it provides a private right of action

only to enforce constitutional provisions and statutes that

provide for the enforcement of "equal or civil rights." Be-

5

cause Thiboutot was correctly decided, petitioner's argument

should be rejected.

Section 1983 provides a cause of action for the "...

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws..." In the 1960s, this Court

was increasingly presented with suits alleging violations of

"laws" independent of or in addition to constitutional viola-

tions. By 1979, the Court had decided many such cases, as

all Justices then on the Court acknowledged. See Thiboutot,

448 U.S. 1, 6, and at 26, 30-33 (Powell, J., dissenting);

Chapman v. Houston Welfare Rights Organization, 441 U.S.

600, 644-46 (1979)(Powell, J., concurring), 660-63 (White,

J., concurring); and 673-74 (Stewart, J., dissenting).

In some cases, the Court simply reached the merits

without discussing the applicability of §1983. In other

cases, the Court supported its holding by noting that §1983

provided a cause of action for violations of federal statutes

as well as constitutional provisions. For example, in Green-

wood v. Peacock, 384 U.S. 808, 829-30 (1966), the Court

said that state officials could be held liable under §1983

"not only for violations of rights conferred by federal equal

civil rights laws, but for violations of other federal constitu-

tional and statutory rights as well." In Edelman v. Jordan,

415 U.S. 651, 675 (1974), then-Justice Rehnquist, writing

for the Court, said that "suits in federal court under §1983

are proper to secure compliance with the provisions of the

Social Security Act,” citing Rosado v. Wyman, 397 U.S. 397

(1970). See also Quern v. Jordan, 440 U.S. 332, 337

(1979). In Owen v. City of Independence, 445 U.S. 622,

649 (1980), the Court said that the question under §1983

was whether the defendants had conformed to the Constitu-

tion "and statutes."

This view was relatively uncontroversial until 1979,

when a debate began among the Justices of this Court on the

scope of the "and laws" portion of §1983. Relying primari-

ly on legislative history from the nineteenth century, three

Justices in Chapman, \ed by Justice Powell, argued that "and

laws" meant “and equal or civil rights laws." 441 U.S. at

623. In response, four Justices argued that the phrase "and

laws" contained no such qualifiers. /d. at 646, 672.

The debate that surfaced in Chapman was settled in

Thiboutot, only one year later. By a vote of 6-3, the Court

held that the phrase “and laws" in §1983 meant exactly what

it said and was not limited to “equal or civil rights laws."

The Thiboutot Court relied upon: (1) the plain language of

the Act, (2) its prior decisions, and (3) the legislative history

of §1983. Because in each case the Court’s view was cor-

rect, petitioner’s challenge to Thiboutot should be rejected.

1. Plain Language Of §1983

First and foremost, the plain language of §1983 contains

no limitations. The statute has no modifying phrase that can

fairly be read to limit either the constitutional’ or statutory

provisions for which a cause of action is created.

The phrase “Constitution and laws" was hardly unfamil-

iar to Congress. Its first appearances are in Article III, §2

("The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the

United States . . ." ) and the Supremacy Clause ( "This Con-

stitution and the Laws of the United States, which shall be

? It is not clear whether petitioner would have the Court also limit the

constitutional rights that can be enforced pursuant to §1983 and thereby

reverse Monroe v. Pape, 365 U.S. 167 (1961), and United States v.

Classic, 313 U.S. 299 (1941). At one point, petitioner appears to suggest

precisely that, thus further reinforcing the truly radical scope of petition-

er’s argument. Pet.Br. at 36 n.19.

made in Pursuance thereof... shall be the supreme law of

the Land ...."), Article VI, cl. 2. Alexander Hamilton

used the phrase in THE FEDERALIST PAPERS. Federalist

Nos. 78 and 80 (539 J. Cooke ed. 1961). In 1801, Congress

phrase. Act of Feb. 13, 1801, §11, 2 Stat. 89, 92; repealed

by Act of March 8, 1802, §1, 2 Stat. 132. The phrase also

appears in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

426 (1819), and Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 391-92 (1821).

Based on this history, it is reasonable to assume that

Congress knew what it was doing when it referred, in

§1983, to rights secured by the “Constitution and laws" of

the United States, and that it used those terms in their ordi-

nary sense. Certainly, that was this Court’s conclusion in

numerous cases culminating in Thiboutot, but not limited to

it. Even if the text were less clear, such a consistent inter-

pretation of the congressional language is entitled to

respect.

2. Legislative History Of §1983

Section 1983 has its origins in §1 of the Civil Rights

Act of 1866, ch. 31, 14 Stat. 27, which provided that

African-American citizens would have the “same right" as

white citizens "to make and enforce contracts, to sue, be

parties, and give evidence, to inherit, purchase, lease, sell,

hold, and convey real and personal property." Section 3 of

that Act gave the federal courts jurisdiction to enforce those

rights.

* "([O)ur acceptance of the plain terms of [§1983] and analogous criminal

proscriptions has been consistent, and for over a century Congress has

not acted to rectify any purported error in our construction of these pro-

visions.” Chapman, 441 U.S. at 658-59 (White, J. concurring).

version, which now protects “any rights . . . secured by the

Constitution and laws . . ." Rev.Stat. §1979.°

Congress also created two jurisdictional statutes in

1874. The district court jurisdictional statute, Rev.Stat.

§563(13), was consistent with §1983 and provided jurisdic-

tion for violations of laws as well as the Constitution. The

circuit court jurisdictional statute provided jurisdiction only

for “any law providing for equal rights." Rev.Stat. §629

(16). In 1911, Congress merged the two jurisdictional stat-

utes into the present §1343(3), providing jurisdiction for any

"Act of Congress providing for equal rights ..." Judicial

Code of 1911, ch. 231, §24, 36 Stat. 1087, 1091.

* Section 16 of the 1870 Act, governing criminal penalties, expanded

previous law and made it a crime to conspire to deny any right secured

by the Constitution “or laws." Ch. 114, 16 Stat. 140; Chapman, 441

U.S. at 651 (White, J., concurring). See also United States v. Price, 383

U.S. 787 (1966); United States v. Classic, 313 U.S. 299. That language,

in what is now 18 U.S.C. §§241, 242, has been interpreted consistently

with the identical language in §1983. Petitioner does not indicate if she

believes a modifier should also be implied in §§241 and 242, thus over-

ruling Price, Classic, and similar cases, as well as Thiboutot. See Chap-

man, 441 U.S. at 662-63 (White, J. concurring).

* Because they are identical for purposes of this case, Rev.Stat. §1979

will be referred to by its present designation, §1983.

* The criminal statutes continued to prohibit violations of rights under

the “Constitution or laws." Chapman, 441 U.S. at 661 (White, J. con-

curring).

Petitioner's argument that the phrase “and laws” in

§1983 should be limited to "laws providing for equal rights"

rests on two basic premises, both of which were also advo-

cated by Justice Powell in Chapman but rejected by the full

Court in Thiboutot. First, petitioner argues that the revision

of the statutes in 1874 was supposed to be technical, not

substantive. Chapman, 441 U.S. at 625; Thiboutot, 448

U.S. at 16-18. Second, petitioner contends that §1983, and

its two jurisdictional counterparts, Rev.Stat. §563(13)(district

court jurisdiction without limitation) and §629(16)(circuit

court jurisdiction limited to “equal rights”),’ should be in-

terpreted to have the same meaning despite their different

language. Furthermore, petitioner argues that the meaning

that should be ascribed to all three statutes is the limited one

of §629(16) rather than the more expansive one found in the

other two statutes and the corresponding criminal statutes.

See also Chapman, 441 U.S. at 635 (Powell, J.). Both

premises of petitioner's argument are flawed.

Specifically, there is ample evidence in the legislative

history that Congress recognized it was expanding §1983

when it added the phrase "and laws" in 1874. Chapman,

441 U.S. at 664, n.40 (White, J. concurring). Representa-

tive Lawrence’s comment that §1983 would be applied more

broadly than its predecessor in a “few cases," id., both sup-

ports the notion that the language change was intentional

and reflects the fact that, in 1874, there were only a "few"

statutory rights that could be protected by §1983. See Rev.

Stats. §§2259, 2289, 2319, 2320, 3194, 3199. In addition,

Congress rejected a proposal offered by Representative Wil-

lard which would have required that any provision of the

Revised Statutes be interpreted identically to earlier, differ-

” Hereinafter, §§563(13) and 629(16), unless explicitly so cited, will be

referred to by the section given them after merger, §1343.

10

ently worded provisions. 2 Cong.Rec. 648 (1874); see also

Hamilton v. Rathbone, 175 U.S. 414 (1899); Vietor v.

Arthur, 104 U.S. 498, 500 (1881); McDonald v. Hovey, 110

U.S. 619, 629 (1883); Deffeback v. Hawke, 115 U.S. 392,

402 (1885); Endlich, A COMMENTARY ON THE INTERPRETA-

TION OF STATUTES 65 (1888).*

Whether one characterizes the 1874 change as "techni-

cal" or not, the language of §1983 is clear and unambigu-

ous, especially when compared to the narrower language

used by Congress when it defined the jurisdiction of the cir-

cuit courts. Significantly, moreover, the first draft of §1983

contained the narrower language of the 1871 Act; it was

changed for the final draft. Title LXXIII, Chap. VII, §190

(Draft of 1872). Under analogous circumstances, this Court

has repeatedly held that the Revised Statutes of 1874 must

be seen as having changed the law where the plain language

so dictates. See United States v. Bowen, 100 U.S. 508, 513

(1880)("when the meaning is plain, the courts cannot look to

the statutes which have been revised to see if Congress erred

in that revision .. ."); Hamilton v. Rathbone, 175 U.S. at

419-21 ("prior acts may be resorted to, to solve, but not to

create an ambiguity")(emphasis in original); Continental

Casualty Co. v. United States, 314 U.S. 527, 530 (1942).

In addition, after 1874, Congress recognized that it had

inadvertently made some 253 substantive errors. Those

* The 1874 Revisions explicitly repealed all prior statutes. Rev.Stat.

§5596; 2 Cong.Rec. 2713 (1874). See also 7 Cong.Rec. 1137 (1878)(in

interpreting the Revised Statutes of 1874, “the courts cannot look back

to the original and be governed by that, because the original act has

been repealed . . .")(Sen Christiancy). When a later significant revision

of federal law was proposed, Congress adopted the opposite approach

and refused to “have it absolutely replace all the laws of the United

States as was done by the Revised Statutes in 1874." 67 Cong.Rec.

12074 (1926)(Rep. Fitzgerald).

1]

were corrected in 1877 and again in 1878. 18 Stat. 1433-

36; 19 Stat. 240 (1877). Section 1983 was not among those

corrected, though other provisions of both of the jurisdic-

tional statutes were modified. See R. Dwan and E. Feidler,

"The Federal Statutes: Their History and Use," 22 Minn.L.

Rev. 1008, 1014 (1938); M. Price and H. Bitner, EFFECTIVE

LEGAL RESEARCH 29 (3d ed. 1969); Comment, "Section

1983 and the Private Enforcement of Federal Statutes: A

New Frontier for the Civil War Legislation," 18 Willamette

L.Rev. 433 (1982).

Petitioner's second premise -- that §1983 and §1343

must be read identically -- is equally flawed. There is sim-

ply no reason to suggest that §§1983 and 1343(3) need be

read identically. See generally Chapman, 441 U.S. at 660-

63 (White, J., concurring). It is entirely logical, as this

Court ultimately held, to assume that Congress chose to lim-

it the availability of §1343 to actions seeking to enforce

equal rights laws while providing jurisdiction over other

statutory §1983 actions only where the requisite amount in

controversy under §1331 was met. Such a choice presuma-

bly would have been based either on the theory that suits

claiming infringements of the equal rights guarantees are

less amenable to pecuniary valuation than other actions, see

Hague v. CIO, 307 U.S. 496, 529 (1939), or on the theory

that suits claiming such violations should be heard regard-

less of the amount in controversy.”

3. Petitioner’s Proposed Alterna-

tives To Thiboutot

Petitioner suggests two “interpretations” of §1983 to re-

place the holding in Thiboutot. First, she suggests that

* Since the 1908 elimination of a jurisdictional amount requirement in

federal question cases, this debate is irrelevant. 28 U.S.C. §1331. See

Pub.L.No. 96-486, §2(a), 94 Stat. 2369 (1980).

12

§1983 should be read to create a private right of action only

where another statute creates a private right of action. Pet.

Br. at II].A. This would, of course, make §1983 entirely

superfluous.’ Undeterred, petitioner argues that making

§1983 superfluous would be a harmless act because an im-

plied private right of action exists to enforce constitutional

rights,'' and because other statutes would create private

rights of action where Congress intended they exist. Wheth-

er this Court would be causing harm or not by essentially

repealing §1983 is irrelevant. As petitioner admits, the key

question is congressional intent and it is elemental that this

Court should not lightly presume that Congress intended to

pass totally meaningless statutes. Indeed, in light of the his-

tory of §1983, for this Court to find that Congress did not

intend it to have any meaning would be a most remarkable

holding.

Second, petitioner suggests that §1983 be limited to cre-

ating a private cause of action to enforce "equal or civil

rights." Pet.Br. at III.B. Primarily for the reasons stated

above, this argument is unpersuasive. Any lingering doubt

was removed when this Court recently reaffirmed its holding

in Thiboutot rejecting that argument. Specifically, in Dennis

v. Higgins, 498 U.S. 439 (1991), the Court stated that "[a]

'° She also suggests the need to adhere to the plain statement rule. Pet.

Br. at IIl.A. Of course, in Thiboutot, this Court held that §1983 is a

plain statement of Congress’ intent.

'' In support, petitioner cites Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), a case establishing a

private right of action to sue federal officials, not state officials, for vio-

lation of constitutional rights. This Court has never explicitly held that

an implied right of action exists to sue state officials for violation of

constitutional rights. It has never had to -- §1983 provides that cause of

action. It is only by seeking to render §1983 meaningless that petitioner

must ask this Court to reach the issue of an implied cause of action.

13

broad construction of §1983 is compelled by the statutory

language, which speaks of deprivations of ‘any rights,

privileges, or immunities secured by the Constitution and

laws.” Accordingly, we have ‘repeatedly held that coverage

of [§ 1983] must be broadly construed." Jd. at 443.

Dennis further noted:

the Court has never restricted the section’s

scope to the effectuation of [equal rights].

Rather we have given effect to its broad lan-

guage, recognizing that §1983 "provides a rem-

edy to be broadly construed, against all forms

of official violation of federally protected

rights. Monell v. New York City Dept. of So-

cial Services, 436 U.S. 658, 700-701 (1978).

Thus we have refused to limit the phrase ‘and

laws’ in §1983 to civil rights or equal protec-

tion laws.

Id. at 445; Livadas v. Bradshaw, 512 U.S. __, _, 114 S.Ct.

2068, 2083 (1994). To accept petitioner’s argument would

be to reject the statements in Dennis. Alternatively, it

would require that the Court hold that there was an implied

limitation on the "and laws" portion of §1983 that did not

exist in the "Constitution" portion.

Petitioner suggests one other rationale for adopting this

interpretation.'’ It would, she argues, "bring[{] §1983 into

? Petitioner also emphasizes that §1983 does not create a cause of action

unless there is a "right . . . secured.” She argues that this somehow re-

quires the plain statement of a cause of action in the underlying substan-

tive statute. Instead, the "right . . . secured" language connotes that the

right is mandatory. See Pennhurst State School and Hospital v. Halder-

man, 451 U.S. | (1981)(Pennhurst 1). No section of the Constitution

has an express right of action, yet many sections have been held by the

Court to "secure" rights that are enforceable through §1983. See Chap-

(continued...)

14

:

;

|

|

|

harmony with the Court’s most recent interpretation of the

Eleventh Amendment." Pet.Br. at 43. Of course, §1983

does not abrogate the Eleventh Amendment. Quern v. Jor-

dan, 440 U.S. at 341. Thus, restricting §1983 is not neces-

sary to protect the values of the Eleventh Amendment. In-

stead, this argument is really a thinly disguised second at-

tempt to limit or reverse Ex Parte Young and, for the rea-

sons stated in Point II of this brief, should be rejected.

B. The Standards Required For Violating The

Principles Of Stare Decisis Have Not Been

Met

"The Court has said often and with great emphasis that

‘the doctrine of stare decisis is of fundamental importance

to the rule of law.’" Patterson v. McLean Credit Union,

491 U.S. 164, 172 (1989), quoting Welch v. Texas Dep't of

Highways and Public Transportation, 483 U.S. 468, 494

(1987). It has also said that "any departure from the doc-

trine of stare decisis demands special justification." Arizona

v. Rumsey, 467 U.S. 203, 212 (1984). See Seminole Tribe

of Florida v. Florida, 116 S. Ct. 1114 ("the evenhanded

predictable, and consistent development of legal principles

_.. reliance on judicial decisions, and ... the actual and

perceived integrity of the judicial process’ counsel strongly

against reconsideration of our precedent." See also Planned

Parenthood v. Casey, 505 U.S. 833, 867 (1992).

= (..continued) .

man, 441 U.S. at 613 n.29 (referring to rights “protected by the Consti-

tution and hence secured by it")(citations omitted). Thus, to adopt peti-

tioner’s argument, the Court would either have to hold that "secured"

means something different when it refers to the Constitution than when

it refers to laws, or that the Constitution does not "secure" any rights

and §1983 is therefore unavailable to enforce constitutional rights.

15

In asking this Court to overrule Maine v. Thiboutot, pe-

titioner is asking this Court to overrule a question of statuto-

ry interpretation. As this Court has frequently observed,

however, "[c]onsiderations of stare decisis have special

force in the area of statutory interpretation, for here, unlike

in the context of constitutional interpretation, the legislative

power is implicated, and Congress remains free to alter what

we have done." Patterson, 491 U.S. at 172-73. See also

Seminole Tribe, 116 S.Ct. at 1127. Congressional intent is,

therefore, key.

Even prior to the Thiboutot decision, Congress had un-

mistakably expressed its view that §1983 provided a broad

right to enforce federal statutes. During the passage of 42

U.S.C. §1988, Congress repeatedly noted its approval of the

view that §1983 provided for a private right of action to en-

force statutes as well as constitutional rights. For example,

the Senate report indicated that the bill would result in the

award of fees for "redressing violations of the Federal Con-

stitution or laws by officials .. .". S.Rep.No. 94-1011, 94th

Cong., 2d Sess. 4, reprinted in 5 U.S. Code Cong. and

Admin. News 5908, 5911 (1976)(emphasis added). Spon-

sors of the bill agreed. “Under applicable judicial decisions,

Section 1983 authorizes suits against State and local officials

based on Federal statutory as well as constitutional rights."

122 Cong.Rec. 35122 (1976)(Rep. Drinan)(emphasis added).

"This legislation is intended to cover cases based on both

constitutional and statutory rights ..." 122 Cong.Rec.

33315 (1976)(Sen. Abourezk)(emphasis added); 122 Cong.

Rec. 33314 (1976)(Sen. Kennedy). And, during the debate

over §1983, congressional supporters approvingly cited cases

based on non-equal rights statutes, such as the Social Securi-

ty Act, as well as statutes providing for equal or civil rights.

Id.; Thiboutot, 448 U.S. at 9-10; Note, "The Application of

Section 1983 to the Violation of Federal Statutory Rights:

Maine v. Thiboutot," 30 De Paul L.Rev. 651 (1981).

16

ee ee ee ees

Since Thiboutot, Congress has reaffirmed its intent that

§1983 be interpreted to permit a private right of action to

enforce federal statutes in several ways. First, Congress re-

jected bills introduced in 1981, 1985, and 1987, that would

have limited §1983 precisely as urged by petitioner.’ In-

deed, in Thiboutot, this Court invited Congress to change

the law if it thought the Court’s interpretation of congres-

sional intent in error. 448 U.S. at 8. Congress’ express re-

fusal to do so is surely some indication of Congress’ agree-

ment with the interpretation in Thiboutot.

Second, in 42 U.S.C. §1320a-2, passed in response to

the decision in Suter v. Artist M., 503 U.S. 347, Congress

indicated its view that a private right of action did and

should exist in Social Security Act cases. In that statute,

Congress sought to reestablish private right of action law as

it existed prior to Suter, law that included the holding in

Thiboutot. Whatever the precise meaning of the post-Suter

statute,'* it represents a clear re-endorsement of Thiboutot.

Thus, far from viewing 7hiboutot as error, Congress has in-

dicated agreement with its holding.

Another principal factor relevant to stare decisis is

whether the decision has proved unworkable or, in the alter-

native, has been relied upon.'° Not only has Thiboutot not

'? §.584, 97th Cong., Ist Sess §1 (1981); $.436, 99th Cong. Ist Sess. §1

(1985); $.325, 100th Cong., Ist Sess. §1 (1987). See also Runyon v.

McCrary, 427 U.S. 160, 174-75 (1976).

'* At the very least, §1320a-2 was clearly intended to reverse any impli-

cation in Suter that the only right created by the Social Security Act was

the right to a state plan, and that persons affected could never sue to re-

quire that the plan be implemented.

'* Petitioner's argument that no one has relied upon the Court’s decision

in Thiboutot is also flawed. There have been hundreds, if not thousands,

of decisions both before and after 1980 applying §1983 to create a cause

of action for violations of federal statutes.

17

proven unworkable, but a decision reversing it would cast

doubt on dozens of this Court’s own cases,'® and hundreds

of lower court cases, a situation that would create massive

(and unnecessary) chaos.

In short, petitioner's attack on Maine v. Thiboutot

would promote instability in the law. The doctrine of stare

decisis is designed to have precisely the opposite effect.

Il. THE COURT SHOULD REJECT PETITIONER’S

INVITATION TO REVERSE OR SHARPLY LIMIT

THE HOLDING OF EX PARTE YOUNG

Because this suit alleges that petitioner is violating fed-

eral law in her capacity as Director of the Arizona Depart-

ment of Economic Security, she is stripped of any Eleventh

Amendment immunity under Ex Parte Young, 209 U.S. 123,

and the federal courts have jurisdiction to provide declarato-

ry and injunctive relief.

Edelman v. Jordan, 415 U.S. 651, is directly on point.

Edelman was a class action seeking injunctive and declarato-

ry relief against the Director of the Illinois Department of

Public Aid for allegedly violating federal mandates that ap-

plied to the program of Aid to the Aged, Blind, and Dis-

abled. In other words, like this case, Edelman involved a

* Following the decision in Thiboutot, this Court has repeatedly used its

holding to acknowledge that §1983 creates a private right of action to

enforce federal law. Livadas v. Bradshaw, 114 S.Ct. 2068; Suter v. Art-

ist M., 503 U.S. 347; Dennis v. Higgins, 498 U.S. 439; Wilder v. Virgin-

ia Hospital Ass'n, 496 U.S. 498; Golden State Transit v. Los Angeles,

493 US. 103 (1989); Wright v. City of Roanoke Redevelopment and

Housing Authority, 479 U.S. 418 (1987); Middlesex County Sewerage

Authority v. National Sea Clammers Ass'n, 453 U.S. 1 (1981); Cuyler v.

Adams, 449 U.S. 433 (1981). See also Schweiker v. Chilicky, 487 U.S.

412 (1988).

18

ne re Ae a

class action suit against the state official responsible for

complying with federal standards in a federally funded pro-

gram. This Court, in an opinion by then-Justice Rehnquist,

carefully distinguished between retroactive relief that would

run against the state treasury and thus was barred by the

Eleventh Amendment, and prospective relief against the

state official that had been allowed pursuant to Ex Parte

Young. The Court declared:

Ex parte Young was a watershed case in which

this Court held that the Eleventh Amendment

did not bar an action in the federal courts seek-

ing to enjoin the Attorney General of Minneso-

ta from enforcing a statute claimed to violate

the Fourteenth Amendment of the United States

Constitution. This holding has permitted the

Civil War Amendments to the Constitution to

serve as a sword, rather than merely as a

shield, for those whom they were designed to

protect. But the relief awarded in Ex parte

Young was prospective only; the Attorney Gen-

eral was required to conform his future conduct

of that office to the requirement of the Four-

teenth Amendment.

415 US. at 664.

As in Edelman, respondents here are seeking only pro-

spective relief to ensure that the Director of the Arizona De-

partment of Economic Security conforms the future conduct

of her office to the requirements of federal law. Edelman

expressly held that suits for such prospective relief are not

barred by the Eleventh Amendment, even if compliance

with the federal court order would impose costs on the state.

Petitioner offers two reasons why the Eleventh Amend-

ment bars this suit: the injunctive relief would run against

the state as the real party in interest, and the case fits within

19

the exception to Ex Parte Young recognized in Seminole

Tribe v. Florida, 116 S.Ct. 1114. As discussed below, nei-

ther of these claims has merit. Indeed, if either were fol-

lowed, the ability to ensure state compliance with federal

law would be greatly diminished, if not eviscerated, thus un-

dermining one of the basic principle of federalism.

A. Injunctive And Declaratory Relief Against

State Officers Is Not Barred, Even If The

State Government Is The "Real Party In

Interest"

Petitioner claims that "the Eleventh Amendment bars a

suit against State officers when the ‘state is the real, sub-

stantial party in interest’ and the officer is being sued mere-

ly as a representative of the State." Pet.Br. at 25. Petitioner

cites Ford Motor Co. v. Dep't of Treasury of Indiana, 323

U.S. 459, 463-64 (1945), as authority for this proposition.

Ford Motor Co., however, involved a claim for money dam-

ages, not injunctive or declaratory relief. Ford Motor Co.

was a federal court suit brought by a taxpayer for a refund

of state taxes that had been paid under protest. Ford Motor

Co. held only that suits for retroactive money damages

against state officers are barred when the state is the real

party in interest and the state treasury will be paying the

sum. The Court said: "[W]hen the action is in essence one

for the recovery of money from the state, the state is the

real, substantial party in interest and is entitled to invoke its

sovereign immunity from suit even though individual offi-

cials are nominal defendants." /d. at 464. The case did not

involve a claim for prospective injunctive or declaratory

relief.

In fact, no Supreme Court case ever has held that in-

junctive or declaratory relief against state officers is barred

because the state is the real party in interest. Quite the con-

trary, this Court frequently has recognized that suits against

20

officers are allowed precisely so that there is a mechanism

to ensure state compliance with federal law. In Perez v

Ledesma, 401 U.S. 82 (1971), this Court explained:

Ex parte Young was the culmination of efforts

by this Court to harmonize the principles of the

Eleventh Amendment with the effective su-

premacy of rights and powers secured else-

where in the Constitution .. . . [The enactment

of §1983 and §1331, creating general federal

question jurisdiction], together, after 1908, with

the decision in Ex parte Young, established the

modern framework for federal protection of

constitutional rights from state interference.

That framework has been strengthened and ex-

panded by subsequent acts of Congress and

subsequent decisions of this Court.

Id. at 106-07 (Brennan, J., concurring in part and dissenting

in part).

Suits pursuant to Ex Parte Young clearly are not barred,

as petitioner contends, because the injunctive or declaratory

relief is ultimately directed against the state government. In

Ex Parte Young itself, the suit was brought against the At-

torney General of Minnesota to enjoin the enforcement of an

allegedly unconstitutional state law. The State, of course,

was the “real party in interest." This Court has expressly

recognized that reality, but nonetheless concluded that such

prospective relief is essential to ensure the supremacy of

federal law. For example, in Pennhurst I/, this Court said

that “the injunction in Young was justified, notwithstanding

the obvious impact on the State itself... .” 465 U.S. at 104

(emphasis added). As the Court observed, “the Young doc-

trine has been accepted as necessary to vindicate federal

rights and hold state officials responsible to ‘the supreme

authority of te United States,’" id. at 105, quoting Ex Parte

Young, 209 U.S. at 160.

21

Indeed, every time a state officer is sued pursuant to Ex

Parte Young to enjoin the enforcement of an unconstitution-

al state law or regulation, the state is the real party in inter-

est. Petitioner's position would bar all such suits and thus

effectively overrule Ex Parte Young. There would be no

way to bring suit in federal court to ensure state compliance

with federal law and to uphold the supremacy of the federal

government over the states. The state itelf, of course,

could not be sued in federal court because of the Eleventh

Amendment. Petitioner's position also would bar suits

against the officers. The doors of the federal courts would

be closed, except for the relatively remote chance of Su-

preme Court review of a state court decision.

This Court often has rejected exactly that possibility and

has emphasized the importance of federal courts being avail-

able to hear suits against state officers to ensure compliance

with federal law. The Court has said that “the doctrine of

Ex Parte Young seems indispensable to the establishment of

constitutional government and the rule of law." Perez v.

Ledesma, 401 U.S. at 110 (Brennan, J., concurring in part

and dissenting in part), quoting C. Wright, HANDBOOK OF

THE LAW OF FEDERAL CouRTS 186 (2d ed. 1970). Like-

wise, Justice Souter recently explained: “Young provided, as

it does today, a sensible way to reconcile the Court's expan-

sive view of immunity expressed in Hans with the principles

embodied in the Supremacy Clause and Article III .

[T]he rule we speak of under the name of Young is so far

inherent in the agree limitation imposed by sovereign

immunity as to have been recognized since the Middle

Ages." Seminole Tribe v. Florida, 116 S.Ct. at 1178-79

(Souter, J., dissenting).

Justice Souter explained the crucial significance of suits

pursuant to Ex Parte Young in upholding the supremacy of

federal law when he stated:

The decision in Ex parte Young, and the histor-

22

.

.

|

.

.

ic doctrine it embodies, thus plays a founda-

tional role in American constitutionalism, and

while the doctrine is sometimes called a "fic-

tion,” the long history of its felt necessity

shows it to be something much more estimable

.... A tule of such lineage, engendered by

such necessity, should not be easily displaced,

if indeed it is displaceable at all, for it marks

the frontier of the enforceability of federal law

against sometimes competing state policies.

Seminole Tribe, 116 S.Ct. at 1180.

Petitioner's position would completely displace Ex

Parte Young. No mechanism would exist for federal courts

to review state laws, no matter how egregious they are in

violating federal law and even the Constitution. By peti-

tioner’s theory, all federal court review of the constitutional-

ity of state laws, even when accomplished pursuant to Ex

Parte Young, is barred because the state is the real party in

interest. Petitioner simply fails to recognize that ensuring

the supremacy of federal law is an essential aspect of feder-

alism and that gutting Ex Parte Young in the manner that

petitioner advocates would undermine a cornerstone of

American government.’

B. Seminole Tribe v. Florida Creates A Narrow

Exception To Ex Parte Young

Petitioner offers an alternative argument as to why this

case is barred by the Eleventh Amendment: "[t}he princi-

ples in Seminole Tribe bar a §1983 action in this case.” Pet.

" Of course, stare decisis strongly supports continued adherence to

| as well as Thiboutot. See Planned Parenthood v. Casey, 505

S. 833.

23

Br. at 26. In Seminole Tribe, this Court declared that

"{w]here Congress has prescribed a detailed remedial

scheme for the enforcement against a State of a statutorily

created right, a Court should hesitate before casting aside

those limitations and permitting an action against a state of-

ficer based upon Ex parte Young." 116 S.Ct. at 1132.

At the outset, it should be noted that Seminole Tribe is

clearly distinguishable from this case. Seminole Tribe did

not involve, as does this action, a suit brought pursuant to

§1983. Rather, the suit in Seminole Tribe was brought

under the Indian Gaming Regulatory Act, which expressly

allowed suits against states to be brought in federal court.

This, of course, was the provision declared unconstitutional

in the first part of the majority's opinion in Seminole Tribe.

Thus, Seminole Tribe did not present the situation posed in

this case: a suit under the express language of §1983 au-

thorizing suits against state officers to halt violations of

"laws" of the United States. Indeed, this is evidenced by the

fact that the Court nowhere mentions §1983 or its availabili-

ty to enforce federal statutes, but instead cites Schweiker v.

Chilicky, 487 U.S. 412, which concerns suits brought direct-

ly under the Constitution.

Even prior to Seminole Tribe, this Court had recognized

that §1983 suits to enforce a federal statute are precluded

when there are “comprehensive enforcement mechanisms” in

the law demonstrating "congressional intent to preclude the

remedy of suits under §1983." Middlesex County Sewerage

Authority v. National Sea Clammers Ass'n, 453 U.S. at 20.

A fair reading of Seminole Tribe, therefore, is that the

limitation on §1983 suits announced in Middlesex County

now also applies to suits against state officers brought pur-

suant to other federal statutes.

Not surprisingly, this is exactly how lower federal

courts have interpreted the exception to Ex Parte Young

24

discussed in Seminole Tribe. The Seventh Circuit, for

example, cited Seminole Tribe and Middlesex County as es-

tablishing the same proposition, that "[w]hen Congress crafts

particular remedies for particular wrongs, the presumption is

that these are the exclusive remedies and that such limita-

tions as they embody are not to be generally circumvented

by extending a more generally worded statute over the sub-

ject of the more specific one." McDonnell v. Cisneros, 84

F.3d 256, 261 (7th Cir. 1996)

This interpretation of Seminole Tribe is consistent, as

well, with other efforts by this Court to reconcile the

Eleventh Amendment and §1983. For example, in Will v.

Michigan Department of State Police, 491 U.S. 58 (1989),

the Court held that state governments are not persons and

may not sued under §1983 in state courts. Although the

Eleventh Amendment has no application in state court

litigation, the Court interpreted §1983 to be in accord with

the principles of the Eleventh Amendment.

Similarly, the holding of Seminole Tribe that Ex Parte

Young does not permit suits against state officers under a

federal law that embodies a comprehensive enforcement

mechanism, is best understood as an effort to bring Eleventh

Amendment law into line with the §1983 rule announced in

Middlesex County. That holding, however, does not doom

this suit. To the contrary, it is perfectly clear under

Middlesex County that the suit against petitioner would be

permissible. In Wright v. Roanoke Redevelopment and

Housing Authority, 479 U.S. 418, this Court held that a

comprehensive enforcement mechanism should be deemed to

exist only if there is an "express provision or other specific

evidence from the statute itself that Congress intended to

foreclose” litigation. /d. at 423. Wright further ruled that

administrative remedies alone do not preclude §1983 litiga-

tion absent a more specific congressional intent to prohibit

§1983 suits. Here, the only mechanisms to enforce Title

25

IV-D are administrative and there is no specific congression-

al intent to bar §1983 litigation.

Thus, Seminole Tribe did no more than to extend the

Middlesex County exception from §1983 suits to suits

against state officers brought under other statutory provi-

sions. In other words, when state officers are sued pursuant

to Ex Parte Young, the Middlesex County exception means

that such suits are barred if there is a comprehensive en-

forcement mechanism as defined in Middlesex County and

Wright v. Roanoke Redevelopment and Housing Authority.

Because there is no comprehensive scheme in this case, Ex

Parte Young remains the only avenue available to respon-

dents to secure compliance with federal law. Nothing in

Seminole Tribe supports petitioner's claim that this sole

avenue should now be closed. The Court should emphati-

cally reject petitioner’s invitation to turn civil rights en-

forcement back one hundred years.

26

CONCLUSION

For the reasons stated above, the Court should affirm

the judgment of the United States Court of Appeals for the

Ninth Circuit.

Respectfully submitted,

Christopher A. Hansen

(Counsel of Record)

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Erwin Chemerinsky

University of Southern California

Law School

University Park

Los Angeles, California 90089

(213) 740-2539

Dated: October 17, 1996

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