VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY v. REINHARD

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 prospective 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 training, 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 system receives separate federal funds, paid to it directly. §15042(a) and (b). A second federal law, the Protection 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 statutory 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 investigation,” §15043(a)(2)(J)(i). The Acts also require that a P&A system have authority to “pursue legal, administrative, 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 designated 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.” §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 “independent 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 Senate 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 reasons. See §51.5–39.2(C) and (F); §24.2–233 and 234 (Lexis 2006).

VOPA enjoys authority to litigate free of executivebranch oversight. It operates independently of the Attorney 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 specifically 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 materials from disclosure. 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 Eleventh Amendment1 only eliminates the basis for our judgment 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. Halderman, 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 immunity at its pleasure, College Savings Bank v. Florida Prepaid 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 reducing the freight rates that railroads could charge. A railroad shareholder claimed that the new rates were unconstitutionally confiscatory, and obtained a federal injunction against Edward Young, the Attorney General of Minnesota, forbidding him in his official capacity to enforce the state law. Perkins v. Northern Pacific R. Co., 155 F. 445 (CC Minn. 1907). When Young violated the injunction 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 unconstitutional 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 conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” 209 U. S., at 159–160.

This doctrine has existed alongside our sovereignimmunity 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. Department 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 administration,’ ” 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 agency claiming to possess federal rights. Although we have never encountered such a suit before, we are satisfied 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 Amendment bar to suit, 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 (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 296 (1997) (O’Connor, J., concurring in part and concurring in judgment)). 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 production 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 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 determining 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 performance 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 regulations governing that land. 521 U. S., at 265. We determined 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. Respondents have advanced no argument that the relief sought in this case threatens any similar invasion of Virginia’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 diminishes the dignity of a State for a federal court to adjudicate a dispute between its components. See Brief for Respondents 23–26; post, at 4–8 (arguing that “ ‘special sovereignty 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 obligations, 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 Amendment indignity is visited on the Commonwealth when, by operation of its own laws, VOPA is admitted to federal 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 protects 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 opposing 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 dissent would require. There also, “[w]hatever the decision 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 Commonwealth 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 operations 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) (Congress 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 sovereign immunity. 7 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 constitutional 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 apparent 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 notwithstanding—the principles undergirding the Ex parte Young doctrine 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 sovereignty. But we conclude no such encroachment is occasioned 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 circumstance, 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.

JUSTICE KAGAN took no part in the consideration or decision of this case.

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.” 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).

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 consented 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. exercise of Congress’s enumerated powers. As JUSTICE KENNEDY observes, whether the Acts run afoul of some other constitutional provision (i.e., besides the Eleventh Amendment) “cannot be permitted to distort the antecedent question of jurisdiction.” Post, at 5 (concurring 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 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).

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 unconstitutional 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 prospective order but not to equitable restitution, for the latter was too similar to an award of damages against the State. 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. Nevertheless, 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 justification 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 important limits on Young in order to respect state sovereignty while still adhering to principles necessary to implement 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 Protection and Advocacy may rely on Young, despite the somewhat 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 assumed 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 protect.” Coeur d’Alene, supra, at 268. Permitting a state agency like VOPA to sue officials of the same State does 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 participating in the federal program. The availability of that alternate 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 protections 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 importance 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 controversy. 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 federal rights are violated by unlawful state action, for example where the State engages in discriminatory employment 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. Statutes 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 government officials makes the scope of the holding here a narrow 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 spending 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 habilitation 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 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 governmental 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 preserves its validity, but the specter of a statute’s unconstitutionality 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.

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 unsettling 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’ “immunity 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. Louisiana, 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 dignity 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 observed, Ex parte Young rests on the “obvious fiction,” Couer 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 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 jurisprudence 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 implicated, Couer d’Alene Tribe, supra, at 281.

We recently stated that when “determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, 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.” 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 considering 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 “sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine.” Ibid.2 In Couer 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 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 inconsistently 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 jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics 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 fiction.” 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, petitioner 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. 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 indication 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 significance” 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 previously 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 simply 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., at 106. In Alden, we held that state sovereign immunity 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 Government 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 Commonwealth 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 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 hypotheticals, 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 preclude 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 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 cannibalism; 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 Virginia’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., 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 knowingly exposed its officers to suit in federal court.

In a similar vein, the Court asserts that because Virginia 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 Commonwealth 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, 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” throughout 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 response. 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 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 established by our Constitution, I respectfully dissent.

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.

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.” McKesson 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.

Print this transcript Transcript: 

ORAL ARGUMENT OF SETH M. GALANTER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 09-529, the Virginia Office For Protection and Advocacy v. Stewart.

Mr. Galanter.

Mr. Galanter: Mr. Chief Justice, and may it please the Court:

The Virginia Office For Protection And Advocacy, known as VOPA> ["], seeks to enforce its Federal statutory right to inspect and copy records that are in possession of State officials who run State-operated hospitals.

Respondents acknowledged below that if Petitioner were a private entity, Ex parte Young would permit this suit.

VOPA's status as a State entity does not change the Ex parte Young analysis because it imposed neither a greater burden on the treasury nor the dignity of the State.

The only issue to be resolved by the Federal court is who has the correct reading of Federal law about the records access issue.

It--

Chief Justice John G. Roberts: Counsel, if this were a private suit, let's say Ford Motor Company has two subsidiaries, Ford East and Ford West, they get into a dispute.

Ford West sues Ford East.

No Federal court would entertain that action, would it?

Mr. Galanter: --Well, Your Honor, if I could clarify.

First of all, there would have to be a question of Federal law.

Chief Justice John G. Roberts: Yes.

They think -- Ford West thinks Ford East is discriminating on the basis of race.

Mr. Galanter: It would have to--

Chief Justice John G. Roberts: That adversely affects their reputation, too, so they sue them.

Mr. Galanter: --I think that inquiry goes to the question of adversity and standing, the Article III question.

And this case doesn't involve that because VOPA is independent of the entity--

Chief Justice John G. Roberts: It's independent -- it is independent from what?

Mr. Galanter: --It's independent from the executive branch.

It's independent from the Respondents it's trying to sue.

Chief Justice John G. Roberts: Yes, but is it independent from the State?

Is that what the statute says?

Mr. Galanter: The statute requires independence.

The Federal statute requires that VOPA be independent.

But it's independent here because its commission, only a third of it is appointed by the governor and none of the members of the commission that run VOPA can be removed except for cause.

Chief Justice John G. Roberts: You say on page 27 of your brief, the blue brief, that there is no big deal here with respect to State sovereignty because ultimately the sovereign retains the authority to dissolve the State agency plaintiff if the State believes the litigation is too onerous.

Mr. Galanter: That is correct.

That is, the sovereign, the Commonwealth, could repeal the law that enacted VOPA, just as in this Court's cases, ICC v. United States, Congress could have removed, eliminated the ICC.

Chief Justice John G. Roberts: That's a good cite for your proposition, but arguably in those cases the ICC is really not the real party in interest.

The real party in interest is the beneficiary of the ICC ruling.

Mr. Galanter: Well, I believe this Court has continually held that independent agencies and other Federal agencies can litigate, the cases involving the Federal Labor Relations Board.

And this Court has allowed, for example, suits about licenses for Federal dams where one agency wants to build a Federal dam and another--

Chief Justice John G. Roberts: To get back to my question, no court would entertain Ford West against Ford East?

Mr. Galanter: --If that's right, and I think it is if they are part of the same, if they are subsidiaries of one corporation and aren't separate.

Justice Sonia Sotomayor: Why is that true?

If they are separate corporate entities, what legal rule would stop a separate corporate entity from suing another?

Is there -- if they are part of the same company, I think that's a different issue.

If they are the same company, that's a different issue and just a different branch or a different office.

Mr. Galanter: I had understood that to be the Chief Justice's hypothetical, they were divisions of a single legal entity.

Chief Justice John G. Roberts: Not divisions; separate corporate entities that happened to be wholly owned by the same parent.

Mr. Galanter: I do believe then that there could be litigation between them, but ultimately there wouldn't be.

Chief Justice John G. Roberts: Well, I would have thought that would become an advisory opinion.

Ford has an internal dispute, basically, and in that hypothetical one of the entities would be asking the Federal court to resolve it.

Ford can decide at the end of the day how it wants to resolve it.

If Ford West wins and Ford East loses, Ford can say, all right, this is how we are going to do it regardless of what the Federal court says.

Mr. Galanter: Well, that's true that after the litigation is over, one of the parties may, you know, be able to work around the law.

That's true, in fact, in every Federal spending clause statute where you are dealing with prospective relief.

The State is always free to say, okay, if this is what we have to do we opt out of the program.

Chief Justice John G. Roberts: The State here is free to dissolve one of the parties to the case.

That's a little different.

Mr. Galanter: Well, it's the Commonwealth that is free to dissolve one of the parties.

Chief Justice John G. Roberts: All right, State, Commonwealth.

Mr. Galanter: I know.

I meant, as opposed to -- I wasn't making -- but the Respondents here are State officials and even the Respondents' agency has no power over IPAS and on the day to day basis even the governor and the attorney general have no control over what IPAS -- excuse me, VOPA does.

IPAS is a similar case out of Indiana.

But what is critical here is that as we stand here today, the Commonwealth has vested a Federal right in VOPA and neither the attorney general nor the governor of Virginia can stop VOPA from exercising that right.

Justice Sonia Sotomayor: Counsel, I'm not quite sure what the premise of your argument is.

You seem to be arguing that the independence of the state agency is what makes this particular entity capable of suing.

Yet in your brief you rely on Verizon's simple test, which says if you are asserting a Federal claim you can sue and you're not -- and you are looking for prospective injunctive relief; you can sue the State.

That general rule wouldn't look at who's suing.

That was part of your argument.

Yet now you are arguing the independence of the agency.

Which is your position.

Mr. Galanter: I--

Justice Sonia Sotomayor: And if it is the one about the State's independence, how do you articulate why that becomes important or not?

What's the legal significance of that vis-a-vis this case and any ones moving forward?

Mr. Galanter: --If I may, there are -- there are three issues that are intertwined here.

First, the issue that I was talking about with the Chief Justice regarding the Article III adversity that you need for standing, that is where the independence is relevant.

The second question is the one that we petitioned on, which is the Eleventh Amendment issue, and there we would suggest that the simple straightforward inquiry of Verizon is relevant.

And then there is a third portion which the court of appeals seemed to rely on, which is that -- the notion that the State has a Federal right at all with some -- against another part of the State and its officials was incongruous.

That, if anything, would be a Tenth Amendment concern, and is resolved here because it was the Commonwealth itself that made the voluntary decision to vest these Federal rights in independent State agencies.

Justice Antonin Scalia: Well, let's assume, and -- and I'm not sure what the situation is in -- in the Commonwealth.

We have held that the States don't have to have the same notion of separation of powers that the Federal Government does.

In the Federal Government we allow independent regulatory agencies separate from the President.

Let's assume that Virginia has a system in which the governor is indeed in charge of the entire -- the entire executive branch.

Do you know whether that's the case?

I don't know.

Mr. Galanter: It -- it is not the case in Virginia or in 49 of the 50 States.

Justice Antonin Scalia: Okay.

Well, if it were, and if Congress offered money to the State and the only way the State could get it would be to abandon its system of separation of powers and to allow an agency of the State which would normally be under the direction of the governor to go riding off on its own and -- and sue the governor, do you think there wouldn't be any -- any problem about -- about the Federal Government doing that?

Mr. Galanter: I--

Justice Antonin Scalia: Requiring the State to in effect alter its -- its governmental structure in order to obtain the Federal money?

Mr. Galanter: --I do think there might be a problem, first requiring it.

And I think there might even be a problem if it were a Spending Clause statute alone.

But if -- I realize that's the -- but that's not an Eleventh Amendment problem.

That's a question about whether--

Justice Antonin Scalia: Sure.

Mr. Galanter: --And here the only question, because -- the only question addressed below and the only question -- this is all on the interlocutory appeal just on the Eleventh Amendment--

Justice Antonin Scalia: Got you.

Mr. Galanter: --is whether we can sue other officials in the State to bring them into prospective compliance with the Federal law, as -- as I said, though, and this statute authorizes the State if it takes the money to designate either a public or private entity as its protection and advocacy system.

That is, they could have vested these Federal rights in a nonprofit corporation--

Chief Justice John G. Roberts: Well, right, but that makes all the difference in the world because they made the choice of saying this is going to be one of us, the State.

And as far as what issue is before the Court, I would suppose the Article III question is a jurisdictional one that we have to address before reaching the Eleventh Amendment question.

Mr. Galanter: --I -- I think that they're both sufficiently jurisdictional that you could reach them in -- in -- you wouldn't have to reach Article III before the Eleventh Amendment.

But I do think that the Article III question -- I mean, this Court in its FOIA decisions such as you know, Public Citizen v. Department of Justice, has said that Congress can create a right to access to information--

Justice Ruth Bader Ginsburg: Mr. Galanter, if we can go back to get what this -- this entity was.

The Federal legislation gives the States a choice to do it either in the State agency or a private entity.

The specification that the State agency has to be independent is in the Federal statute, isn't it?

Mr. Galanter: --Yes, Your Honor.

Justice Ruth Bader Ginsburg: It's not -- it's not up to the State to want to put it into an independent regulatory agency.

And is this VOPA, is that an entity that was created just to carry out this Federal program or was it a preexisting agency?

Mr. Galanter: It -- it and its predecessors were created just to implement this program.

Justice Ruth Bader Ginsburg: Does it ever do anything else other than administer the Federal program?

Mr. Galanter: It has a few responsibilities that the State has given it under State law in addition, but its primary function -- and at this point all its budget comes from the Federal Government, and it serves primarily this Federal function to go into public and private institutions to observe and make sure that abuse and neglect is not occurring there.

And that is obviously why these records were requested, because the statute gives the protection and advocacy service a right to access records of people in the institution to make sure that they are not being mistreated and that investigations and the oversights by the State are taking place and are being done correctly.

Justice Sonia Sotomayor: Counsel, following up on Justice Scalia's question to you, his question in fact is in part what happened here.

Virginia at some point did require every State agency to seek the permission of its attorney general, is it, to sue?

And the government said that's not independent enough, and if you want the money you've got to make VOPA eligible to sue without that permission; is that correct?

Mr. Galanter: That -- that is correct.

And then the legislature of the Commonwealth went in and gave VOPA independent litigating authority, independent of the attorney general.

On the Eleventh Amendment point, which is again--

Chief Justice John G. Roberts: Well, just -- I know you are anxious to get to that, but--

[Laughter]

--do you know -- do you know of any other situation where one party in a Federal court action can dissolve the other one in the middle of the case?

I mean, if VOPA files a discovery request with the State and they think it is, as you put it in your brief, too onerous, the State can say: Guess what, the case is over, you are dissolved.

Mr. Galanter: --Well, I -- again, I would go back to the Federal analogy, that in all this litigation with the ICC or -- well, with the Federal labor relations authorities, with the licensing authority of the Department of Interior for dams that -- that, you know, the TVA might want to build, that Congress can always eliminate these agencies, but while they are still in existence--

Justice Antonin Scalia: I guess in Nixon v. United States the President could have dismissed the attorney general, but we allowed the suit to go forward.

I never did understand that.

[Laughter]

Mr. Galanter: --Well, I think it's because you look at standing in terms of the current reality, and in Nixon, for example, the attorney general had promulgated a regulation saying he couldn't dismiss the special prosecutor except for cause.

Justice Anthony Kennedy: But there are a number of instances in the States where constitutional officers have their separate autonomy, their separate responsibilities.

And it seems to me to follow inevitably from your position that the attorney general of State A could sue the governor of State A saying the governor is being sued in an Ex parte Young capacity because the governor is not following Federal law.

I think that's just inevitable from your position, and that seems to me a vast extension of Ex parte Young.

It's true, I think that we've never said that the identity of -- or that the permissibility of an Ex parte Young suit depends on the identity of the plaintiff; but don't we have to say that here if we are going to allow the States to structure their -- their own governments as they choose?

Mr. Galanter: Well, I would say that -- well, I would say two things.

First, the idea that you have to accept, as I think Respondents do in this case, that the Virginia Office of Protection and Advocacy legitimately holds a Federal right.

I can't -- I am hard pressed and -- and Respondents and their amici were hard pressed -- to come up with any example where an attorney general would hold a Federal right against another part of the State.

And particularly here--

Justice Anthony Kennedy: Well, he would tell the governor that the governor is not giving adequate protection to prison inmates or State employees, the -- that the governor's own personnel regulations are incorrect, and he would sue under Ex parte Young.

Mr. Galanter: --If the Commonwealth--

Justice Anthony Kennedy: There are all kinds of Federal rights.

Mr. Galanter: --Well, but they are generally not--

Justice Anthony Kennedy: And the question is can one State entity enforce it against another State entity in a Federal court.

Mr. Galanter: --The -- there are not a lot of Federal rights that State officials have against other officials.

Here, this is a right--

Justice Anthony Kennedy: Well, but that -- but under -- under your theory there would be, because under Ex parte Young the whole point of it is that a -- a person can allege that this fictional private individual who is really a governmental individual is violating a Federal right.

That's the whole point of it.

Mr. Galanter: --Violating the plaintiff's Federal right.

That was the only point I was making.

But yes, if there are Federal disputes at issue, a Federal forum is appropriate.

Justice Anthony Kennedy: But State attorney generals have -- have the obligation to enforce Federal rights for all the citizens of their States.

Mr. Galanter: And if they have that right under -- power under State law, then -- and they exercise that power and elect to be in Federal court to litigate Federal issues, that is not barred by the Eleventh Amendment, we would submit.

Justice Anthony Kennedy: Well, that's -- that issue -- I know your white line is on.

You indicated that there are certain cases in which dams can be authorized by the Federal government, I think, contrary to State laws and municipalities.

Do you know what those are?

There is an Iowa case and also a Washington case you were talking about.

Mr. Galanter: I believe the case here I'm thinking of comes out of Seattle.

But -- but I think--

Justice Anthony Kennedy: Do you have the citation?

Mr. Galanter: --I don't have it with me.

Justice Anthony Kennedy: I have been looking for it.

Okay.

Mr. Galanter: But -- but the point I was making is that sometimes one Federal agency needs permission from another Federal agency to build something, and there would be a litigable controversy under Article 3, and that was the only point I was trying to make.

If I may, if there are no more questions, I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Anders.

ORAL ARGUMENT OF GINGER D. ANDERS ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER

Ms Anders: Mr. Chief Justice, and may it please the Court:

VOPA has properly invoked Ex parte Young to enforce Respondent's obligation under the DD and PAIMIA Acts here, because VOPA's complaint satisfies the straightforward inquiries set forth in Verizon.

We don't think that it is necessary to go into State sovereignty interests to determine whether Ex parte Young should be allowed here, but even if the Court were to do that, I think it is unquestionable that there are no State sovereignty interests here.

Justice Samuel Alito: Do you think -- do you think the Spending Clause allows the Federal Government to condition the receipt of Federal funds on a State's agreement to change the structure of State government?

Ms Anders: I think it does, so long as that requirement is reasonably related to the government's interest in the funds and in -- in the objective of its regulation.

Now--

Justice Samuel Alito: Suppose the government said: If you want Medicaid funds, the State agency that administers the Medicaid program must be headed by a person who has a 20-year term of office and is removable only for gross dereliction of duty.

Can they do that?

Can the Federal government do that?

Can Congress do it?

Ms Anders: --I think it could do that, so long as that's not independently unconstitutional.

I think the State always has the opportunity to decide not to opt into the scheme, and I think that's very important here because the sole aspect of this suit that Virginia challenges, which is the fact that VOPA is a State agency, is the result of two sovereign choices that the State made here.

The first choice was to opt to the DD and PAIMIA programs, to take the Federal funds, to create a P and A system that has Federal rights of access to which both State and private facilities are subject.

And the second choice that Virginia made was to establish a State agency P and A system here.

It could have established a private agency if it were concerned about--

Justice Ruth Bader Ginsburg: Ms. Anders, I understand that most States that are taking advantage of this program do it through a private agency, not a State; is that -- is that right?

Ms Anders: --That's correct.

There are eight public P and A systems.

Chief Justice John G. Roberts: Can EPA sue the Army Corps of Engineers for violating the Clean Water Act?

Ms Anders: Well, I think you would have an Article 3 problem if there isn't sufficient adversity.

If the--

Chief Justice John G. Roberts: Well, it's very adverse.

EPA wants clean water and the Army Corps of Engineers wants to, you know, dredge the water in a way that contributes to pollution.

Ms Anders: --Well, they're both -- the heads of both agencies are, in that situation, I think, subject to removal by the same people, and so in that situation, you would have an Article 3 problem.

But we don't have that problem here, because VOPA is independent under State law.

Chief Justice John G. Roberts: Do you agree with the Petitioners that Virginia can dissolve VOPA if it finds the litigation too onerous?

Ms Anders: I think that that would not happen in practice, because if Virginia were to dissolve VOPA, it would be out of compliance with the Federal scheme so it would lose its -- it would lose its Federal funding at that point.

So I don't think that is a situation that is going to arise, but--

Chief Justice John G. Roberts: If it happened to arise, do you think that they can -- do you agree with the Petitioners that they can do it?

Ms Anders: --I think they -- I think they could do it, but I think this -- this Court has previously adjudicated cases where, in theory, the government could have changed the case mid-stream.

U.S. v. Nixon is an example of that.

The ICC case as well, and I think also in the Lassen case, this Court said that it could adjudicate a suit between two State agencies because the agencies were sufficiently independent from each other.

They weren't subject to removal by the same head of government.

So I think, while you might have an Article 3 problem in some situations, you don't have that problem here because of VOPA's independence.

Justice Sonia Sotomayor: Could you be a little bit more specific for me on what you mean about an Article 3 problem?

Justice Kennedy was concerned about State attorney generals willy-nilly suing -- or not willy-nilly, suing governors to comply with Federal law.

Why do you think it won't happen, and what are the legal impediments to that occurring?

Ms Anders: I think there are several.

I think, first, you would have to have a Federal right that the AG would be able to enforce.

He would have to have a way to get into Federal court.

He would have to have a theory of standing, and I think this is not a situation that has arisen at this point.

There are no examples of this.

And so I think--

Justice Stephen G. Breyer: I thought -- this I'm confused about.

I would think you would have to have a State which has a law that permits the attorney general to sue the governor.

Wouldn't you?

I mean, if the State law is the attorney general can't sue the governor, that's the end of it, isn't it?

Ms Anders: --If that was sufficient to get into Federal court for Article 3 purposes, I think there might be some situations in which the attorney general--

Justice Stephen G. Breyer: No.

Suppose the State's law is the governor of the State cannot bring a lawsuit against the attorney general, and vice versa.

Okay?

That's the State law.

Now, under those circumstances can either bring a lawsuit on a Federal right in a Federal court?

Ms Anders: --There may be some circumstances like that one, in which the State AG's use of Ex parte Young would raise special sovereignty interests that would counsel against--

Justice Stephen G. Breyer: I want just a yes or no answer.

In your opinion, can an attorney general where the State law says, black letter law, attorney general can never sue the governor; he's fired instantly if he tries -- that's the law in this State, okay?

Now, can that individual come into Federal court and sue on an Ex parte Young theory suing the governor?

Ms Anders: --I think he could under this Court's decision in Verizon.

Justice Stephen G. Breyer: He could?

Ms Anders: I think there might be certain extreme circumstances where--

Justice Stephen G. Breyer: I don't -- I think that is a problem.

Isn't that what we are saying here?

Justice Antonin Scalia: That can't be.

How can that be?

He has no power as attorney general to do that.

It has nothing to do with -- with Ex parte Young.

It has to do with his powers as attorney general.

Ms Anders: --Right, and as this Court said in Lassen, I think often the Federal court doesn't look behind State officers--

Justice Stephen G. Breyer: I thought that -- suppose I am right about this and you can't do it.

You can't.

You can't -- the Federal Government cannot tell a State how to organize itself.

If it wants to have an attorney general that can never bring a lawsuit, that's up to the State, unless it's a due process problem.

Now, suppose I believe that.

Now, do you lose this case?

Ms Anders: --No, I don't think so, because the same special sovereignty interests are not present here, because under the spending clause, Virginia had the choice to opt into this scheme.

Justice Ruth Bader Ginsburg: Doesn't the Federal statute say: Virginia, if you want to do this through a State agency, that State agency has to be an independent agency and has the authority to sue.

Ms Anders: Yes, that's correct.

Chief Justice John G. Roberts: Are you sure that the governor cannot remove the members of VOPA?

I know it says VOPA has to be independent of any State agency and the governor appoints one-third.

Can the governor remove the members of this Virginia agency?

Ms Anders: As a matter of State law, I don't think he can.

And if he were to try to do that, that would be a compliance problem from HHS's perspective, and so Virginia might at that point--

Chief Justice John G. Roberts: What would it not comply with?

I just don't know.

I'm just looking at the provision where you say it's independent and it says independent of any State agency.

You said the governor may not appoint more than one-third.

I just wonder if there is a prohibition on him removing.

Ms Anders: --Well, there is definitely a prohibition on him removing board members of VOPA or officials of VOPA as a result of VOPA's actions in litigation.

I think--

Chief Justice John G. Roberts: Where is that?

Ms Anders: --Well, the provision -- well, the requirement that VOPA have full authority to pursue legal remedies to ensure the protection of individuals.

This is on page 52a of the petition appendix.

That's the PAIMIA law.

And I think that actually did happen in Virginia, that HHS came in--

Chief Justice John G. Roberts: What if the VOPA officials are engaged in corruption or illegal conduct or, you know, extracurricular activity that brings discredit upon the -- the governor has no power to say that, you are a Virginia official and you are -- you know, whatever -- breaking Virginia law, for example?

And--

Ms Anders: --Well, under Virginia law I think that VOPA's officials are subject to for-cause removal provisions.

So they can actually be removed judicially through for-cause proceedings.

And from our perspective that is consistent with VOPA's independence and it's full authority to pursue remedies because that type of for-cause removal wouldn't be on the basis of VOPA's actions in litigation.

Justice Anthony Kennedy: Going back to your exchange with Justice Breyer, I assume that you could stand by your answer and say the attorney general could sue the governor, because he's not suing the governor in his official capacity.

He has a Federal right under Ex parte Young to sue the governor as an individual.

It's a fiction, we all know that.

But that's the way it works and this is a Federal right.

I think that's your position.

Ms Anders: I think that's right, that under Verizon no more is required.

VOPA has a Federal right here.

Justice Anthony Kennedy: Of course -- of course Verizon was a private party.

Ms Anders: Verizon was a private party.

Justice Stephen G. Breyer: Suing in his capacity as attorney general and under his.

That's the plaintiff, not the defendant.

And he has no right to bring that suit, because -- it's not that he doesn't have a right.

It's that he doesn't have authority.

He's not a person that can do this kind of thing.

Justice Antonin Scalia: I really lost you.

I thought Ex parte Young applied to defendants?

Justice Stephen G. Breyer: Yes, right, exactly.

Justice Antonin Scalia: I didn't think Ex parte Young allows -- allows an attorney general to sue as a plaintiff in his personal capacity.

Am I wrong about that?

Ms Anders: Well, I think that you might have State sovereignty interests at that point.

Justice Antonin Scalia: That's your position.

Ms Anders: That would prevent a Federal court from adjudicating a suit, but there's no question that those interests aren't present here because Virginia has chosen to create a State agency in order to enforce these Federal rights.

Justice Stephen G. Breyer: I'm with Justice Scalia on this.

I will pass to the other side.

Chief Justice John G. Roberts: Thank you, Ms. Anderson.

Mr. Getchell.

ORAL ARGUMENT OF EARLE DUNCAN GETCHELL, JR., ON BEHALF OF THE RESPONDENTS

Earle Duncan Getchell Jr: Mr. Chief Justice, and may it please the Court:

The dignity interest of a sovereign is impaired if it is pitted against itself in the courts of another sovereign without its consent.

And I would take--

Justice Antonin Scalia: A dignified sovereign should not agree to the deal.

Earle Duncan Getchell Jr: --Well, let's--

Justice Antonin Scalia: I mean, you know, the Commonwealth had the choice.

It had two choices, as counsel for the Government said.

It could either turn down the money or, if it's not dignified enough to do that, it could take the money and establish a private organization to do this work instead of a State agency.

So what, you know, what complaint do you have here?

Earle Duncan Getchell Jr: --Well, let me -- let me first say that the choice issue raises some interesting questions because of the procedural posture of this case being an interlocutory appeal.

Because remember, on the issue of waiver and abrogation, that was litigated below and no waiver was found, and that wasn't appealed against.

So if we are going to say it makes a difference under a spending statute that the State has taken the money in analyzing the sovereign interest, then we are creating a waiver on the cheap and dis-shelving the established doctrine.

Justice Ruth Bader Ginsburg: It's not a waiver, it's the Federal statute is clear.

It says State, you can do this in one of two ways.

If you go with the Government agency, then that agency has to have independence and it has to be able to sue.

So if the State is given a choice, it has -- it can do it through private entity, it can do it through, as in this case, an agency that was set up for this very purpose and no other, right?

Earle Duncan Getchell Jr: I would have thought two things about that.

One is when Congress gave the State the choice of making it a State agency, it understood that any issues that arise from that would come with the territory.

The second thing is, what the State consented to is it waived its sovereign immunity to be sued, but it did not specify a suit in Federal court and under ordinary doctrine that's a consent to be sued in its own courts, not in Federal court.

Justice Stephen G. Breyer: Suppose you have a State which loves litigation.

48 percent of the population are retired lawyers.

Nothing pleases them more than to have everybody suing everybody else.

So they pass a statute which says, for purposes of lawsuits in this State, every department can sue every other department.

Now, if you have such a State, what in the Constitution stops the Federal Government from abiding by that rule and applying ordinary Ex parte Young rules, looking at the defendant, looking at horizon, and then if the plaintiff happens to be a Federal agency suing another, say, well, if it complies with those first set, the fact that A sues B and they are both State agencies, that's the State's decision.

What in the Constitution can prevent the State from deciding to organize what we'll call the legal heaven way?

Earle Duncan Getchell Jr: I would say two things about that.

The first is that that's not what Congress did.

Congress said they had to have a right to sue and they didn't specify.

Justice Stephen G. Breyer: Okay.

That's A, we can go into A later because I agree that would be an answer, if it's correct.

If that is what happened, that's a different question, whether Congress could restructure the State.

That's a serious question.

My question was on the first.

Can Congress stop the State from restructuring itself?

Earle Duncan Getchell Jr: Well, I don't think the State by restructuring itself would then ordinarily expect its agencies to sue each other in Federal court.

Justice Stephen G. Breyer: If they wrote it down specifically in the law and said we would love to have our agencies sue each other.

They don't say Federal court.

They just say we love to have our agencies sue each other.

They don't mention the Court.

Earle Duncan Getchell Jr: I would think that under ordinary rules of waiver of sovereign immunity that would limit the suits to the suits of the sovereign of the State.

Justice Stephen G. Breyer: Why, because what's undignified about allowing the State to live with the choice it made?

Earle Duncan Getchell Jr: I think the existing doctrine is an unspecified waiver of sovereign immunity that is not consented in Federal court.

Justice Sonia Sotomayor: I'm sorry, I think there are concepts being confused.

There is no question that it hasn't waived sovereign immunity.

VOPA doesn't claim that.

And this is not a direct suit against the State, it's a suit against a State official.

And the entire premise of Ex parte Young is that this doesn't offend sovereign immunity for a party to seek enforcement, prospectively, of a Federal right.

So I don't know why it really matters who the Plaintiff is so long as the sovereign interests that we recognized, that the issue of sovereignty is one that respects a State's coffers and State's laws and we are not going to interfere with any of them, but we are going to ensure that because of the preemptive effect of the Constitution and our laws that Federal laws are respected.

So what's in this case the intrusion on State sovereignty when the State knew and consented consciously to letting VOPA sue for records when it needed to?

Earle Duncan Getchell Jr: In referring to sovereign immunity, I was trying to answer the hypothetical with respect to why Ex parte Young doesn't apply.

The second part of the question was Congress could expect Ex parte Young to apply.

There is no indication in the legislative record that I could find of that.

Justice Sonia Sotomayor: The State should have expected that.

Earle Duncan Getchell Jr: Excuse me.

Congress should have expected, in the hypothetical Congress was posited as having thought--

Justice Stephen G. Breyer: No.

The hypothetical -- Justice Sotomayor is totally right.

I am talking about Ex parte Young.

I am imagining.

Earle Duncan Getchell Jr: --Okay.

Justice Stephen G. Breyer: I am imagining a system where the State wants to let the AG, this organization, the sheriff of Middlesex County, the City of San Francisco, they want to permit such entities to become plaintiffs against other parts of the State government in such a State if ordinary Ex parte Young requirements are met.

What in the Constitution of the United States prohibits that suit from going ahead?

Earle Duncan Getchell Jr: Because Ex parte Young is an exception to the default position.

The default position is that the State's at the founding retained all of their natural law nations of sovereign immunity.

We know that it was limited, a State can sue another State, the Federal Government can sue another State, and can sue a State, and there is the Ex parte Young exception, but it is the exception.

It is being extended here.

We know it's being extended here because it's never been done before.

And if you are going to extend it, then we ought to ask the question of whether or not, asking the Hans question.

Justice Antonin Scalia: Why -- why is it an extension?

I mean -- I have sort of a bit of a problem with that.

Why is it somehow a -- a greater infringement upon a State sovereignty to allow a State to be sued in Federal court by a private individual, who doesn't even have to be a Virginian, for Pete's sake, he could be from anywhere, he could be from Iowa.

And yet it somehow offends State sovereignty more when -- when you allow a State agency to sue a State?

I don't -- I don't see why that is so horribly worse, unless you are arguing that -- that it somehow destroys the State system of separation of powers.

But that's a different question and -- and the answer to that is simply, you did it yourself.

Earle Duncan Getchell Jr: Well, what I -- what I would say is that Ex parte Young is intended to deal with the situation where a citizen of a dual sovereign is able to vindicate his superior Federal rights against the State.

That interest is not served one bit by having a State agency sue another State agency in Federal court, even though that State agency could have sued in State court.

And I would ask the Hans question.

The Hans question is, would the -- you know, the Constitution is presumed not to raise up causes of action against the States that would have been considered as anomalous and unheard of at the time of the founding.

And I think if you posited whether or not at the founding, if you had asked, can a part of a State -- well, can the Federal Congress authorize part of a State to sue the other part of the State in Federal court, I think it would have been regarded as an anomalous act.

Justice Samuel Alito: When Virginia agreed to participate in this program, did Virginia understand that it could be sued by VOPA not only in the State courts but also in Federal court?

Earle Duncan Getchell Jr: I would assert not.

I mean, that was the point of the waiver argument below, and the Court said there had not been a specific enough declaration of the consequences of taking the money to raise up the traditional waiver.

Justice Ruth Bader Ginsburg: So the point is, if it's not in -- you certainly agree that this State agency has taken on the obligations of the Federal program, and if it doesn't turn over records as the Federal statute requires it to do, it has to be amenable to suit somewhere.

We know if it were a private entity administering this program it would be suable in -- in Federal court.

So this State agency is doing the exact same thing, because Virginia chose it to do it that way.

Where -- where -- a very simple thing, the Federal statute says turn over records to the agency, and the State hospital says no, we are not going to turn over the records.

Where does the agency, whether private or public, that is administering the Federal program go to enforce the Federal right?

Earle Duncan Getchell Jr: The program would go to a State court.

Virginia has waived its sovereign immunity and there is a remedy through mandamus.

Justice Ruth Bader Ginsburg: If you -- is that -- I want to make sure I understood what your position is on that.

It's not that you go into the court that you ordinarily go to when you want to get documents in discovery, you go to the State's supreme court and you -- you apply for the extraordinary writ of mandamus, that's it?

Earle Duncan Getchell Jr: If you have a -- if you have a clear right to these documents as a surrogate, and you know that's a merits question that has never been reached, whether this is a rights-conferring statute.

Justice Ruth Bader Ginsburg: I'm asking you what is the forum?

We have a simple problem.

An agency, whether private or public, wants records.

Federal statute says you are entitled to the records.

And I would like to know now, Virginia having chosen to give this newly created independent State agency the authority rather than picking a 501(c)(3) organization to do it -- simple, we want records of these three people, the hospital has them, the hospital doesn't give them to us.

The only way under Virginia law is to petition the highest court of the State for a writ of mandamus?

Earle Duncan Getchell Jr: I would -- I personally believe you could also do it in circuit court.

I know this office has previously taken the position that it had to go to the supreme court, and I don't want to withdraw any concession that had been made there; but I personally read the statute differently.

Justice Ruth Bader Ginsburg: But which office has said it has to go to -- to the State supreme court on mandamus?

You said that the office has taken that position previously?

Earle Duncan Getchell Jr: The statute, the mandamus statute has a fairly broad catch-all provision at the end which I think would allow suit in -- in circuit court, but I don't think where it can sue really informs the doctrine here, because I think the doctrine here is if you are going to let, under the analysis argued here -- which is not modest, it's very, very broad -- if VOPA can sue in Federal court under Ex parte Young, so can any agency of -- of the -- any State that receives Federal funds upon which it makes the claim at the Ex parte Young stage, which is before you reach the merits, any agency receiving Federal money that can dream up a Federal claim under Ex parte Young could sue the State.

Justice Antonin Scalia: And -- and that has independent litigating authority.

Earle Duncan Getchell Jr: Yes, and -- and--

Justice Antonin Scalia: Okay.

I mean, that's the difference here.

Earle Duncan Getchell Jr: --And I--

Justice Antonin Scalia: This agency was given independent litigating authority.

Earle Duncan Getchell Jr: --I think -- I think Virginia happens to be unusual, as long as we are talking about the policy of results that is will come from this, I think Virginia is unusual in having as much control in the attorney general over who can sue than -- than a lot of States do; because I think a lot of States have their own independent agencies that proliferate and have suit authority.

But I will tell you even in Virginia there is a mechanism by which if you had the governor in one party's hands and the attorney general in the other, the governor can declare a conflict of interest and order private counsel hired.

And so if -- if the University of Virginia wanted to sue the governor, or rather sue the attorney general and the governor said,

"well, if you want to. "

and the attorney general won't authorize it, then that's a conflict of interest.

Justice Sonia Sotomayor: It hasn't happened.

Why do you think?

Don't you think it hasn't happened because there are so many practical political restraints on that kind of activity?

What would happen I think in that State where there was a rogue attorney general is somebody would win; the governor would win by getting a legislative act that says it can't be done, or the attorney general will win because the political sentiments are so strong in his or her favor that the suit is actually welcomed by the population.

So where is the intrusion on sovereignty?

States do what they want.

The only issue is how do we protect Federal rights.

Earle Duncan Getchell Jr: I would -- I would say that it's never happened before because nobody's ever claimed before that Ex parte Young permits a part of the State to sue the other part of the State.

And I would say if the word were declared from this Court that you can do that, that there would be a lot of political motivation to file suits.

Justice Stephen G. Breyer: It isn't that Ex parte Young -- if I understand this right, which is why I mention it -- it isn't that Ex parte Young permits one part of a State to sue another part, it is a State permits one part of the State to sue another part, that that's common in the State, that the law requires it, and the question is, in that circumstance should the Ex parte Young situation be treated differently?

Earle Duncan Getchell Jr: And--

Justice Stephen G. Breyer: Am I right about the statement of the question in the case?

Earle Duncan Getchell Jr: --I -- I think -- I think whether or not the State has given independent authority to sue without specifying that it can be in Federal court, without waiving its immunity in Federal court, is not the issue in the case.

I think the issue in the case -- I think that the issue in the case is whether or not Ex parte Young should be extended to do something that's never been done before.

I think that's the issue in the case.

And I don't think Ex parte Young -- which is a necessary fiction, but it is a fiction, it's a necessary fiction to allow the citizens of a dual sovereign to vindicate his or her Federal rights in Federal court -- is implicated in the least when it's a State agency that could sue another State agency by the State's consent in State court.

Justice Ruth Bader Ginsburg: Do you know -- do you know of any other statute in which there is an independent State agency that exists for the sole purpose of administering a Federal program?

Earle Duncan Getchell Jr: I -- I am not an expert in that area of the law.

I would have thought it's quite common.

But I don't -- I don't know.

That's just my supposition.

I think that -- that--

Justice Ruth Bader Ginsburg: You couldn't give any example of a Federal program that says State, you can do it through a private agency; you can do it through a public agency -- public agency created to implement this Federal program, that is until all this -- I don't really know of any such.

Earle Duncan Getchell Jr: --I personally don't know of one as I stand here, but my supposition is that because the Federal spending power has been so dramatically exercised over the years, that there probably is one, I had not thought to look for it.

Justice Stephen G. Breyer: In your experience, this would be helpful.

Would you characterize as common or uncommon situations where State agencies are given authority to sue other parts of the State?

As I think it to myself, I think, well, the city of Glendale v. State Water Authority, or Middlesex County Sheriff v. The Bureau of Prisons.

That doesn't sound weird to me.

It sounds as if there probably are a lot of such circumstances, but I don't know.

What -- what do you think?

Earle Duncan Getchell Jr: There -- there are two things to look at: Lower subdivisions of the States, which in many States are--

Justice Stephen G. Breyer: Cities against -- they must do that a lot.

Earle Duncan Getchell Jr: --Yeah, but they are just corporations in Virginia and most States.

There are a few States in which they were treated as something different, but they are not generally regarded as even units of -- subordinate units of government for purposes of sovereign immunity.

However, the State itself, and, and its agencies are, and that's the issue that's implicated by Ex parte Young.

I would say that--

Justice Stephen G. Breyer: University of Massachusetts v. State Environmental Organization.

Does that kind of suit sound familiar to you or not?

Earle Duncan Getchell Jr: --I think that -- that the States vary as to how tolerant they are of having their parts sue each other in State court.

I think I have seen titles like that, but I don't think that as a principle of Federal jurisdiction -- because ultimately, whether sovereign immunity exists, if it's not waived, does deprive this Court -- deprives this Court or parts of the Federal court of the right to proceed.

I think that deciding we are going to extend the fiction of Ex parte Young beyond the rights of citizens to allow the State to sue itself in Federal court is just something that's totally anomalous.

I just don't see how this Court would want to do that.

Even -- even if it thought otherwise, that it was, you know, something that could be done under the logic of Ex parte Young, I don't know why you would want to extend that and create -- and create the Federal courts as a venue for political grandstanding, which is what I think--

Justice Sonia Sotomayor: I'm not sure that -- what you are forgetting is that Virginia took a lot of money to set up and get the benefits of Federal funds by creating an independent agency.

It had expressed its desire to control the agency more, and it was told very directly: You can't.

You have to let that agency sue.

What I don't understand is why you think that it's a greater affront to sovereignty that the suit is here as opposed to State court.

The State has already said: We're going to take your money and this is what we're going to permit, a suit.

Earle Duncan Getchell Jr: --I think it has -- I think it has long been recognized that the dignity of the State is not offended at all by a suit against -- against it in its own courts that it has authorized.

I think that it is well understood that if you bring a State against its will into a Federal court, even if you are using the fiction of Ex parte--

Justice Sonia Sotomayor: But we use -- we don't bring the State in.

We bring in the State official who is violating a Federal law.

Earle Duncan Getchell Jr: --But this Court has always recognized that there is a large sense in which that's a fiction and it's just something that we have to tolerate in order to have a dual system of -- of sovereignty.

Justice Antonin Scalia: Your argument is really -- really is a sovereign immunity argument.

You are saying that the waiver of sovereign immunity, unless it explicitly includes a waiver to be sued in Federal courts, applies only in State courts -- okay -- and that that limitation should not be evaded by applying Ex parte Young to a suit in Federal court where the suit is by another State agency.

Earle Duncan Getchell Jr: That is precisely my argument.

Justice Antonin Scalia: So sovereign immunity is part of your argument, but--

Earle Duncan Getchell Jr: I think it's all that is really appropriately before this Court, because again, we are up here on an interlocutory appeal where the decision below in the Fourth Circuit by Judge Wilkinson is premised entirely on sovereign immunity.

Justice Stephen G. Breyer: Right.

Now, explain to me -- this is good, because that's very helpful to me.

It's the exact statement that Justice Scalia made, and you said, Yes, that's exactly right.

And then it is the case of that a citizen of the State can come into the Federal court and sue the State official under Ex parte Young, but you say, but the agency of the State can't do it, even though they have State litigating authority.

And the reason that the latter is more injurious of the dignity interests of the State than the former is--

Earle Duncan Getchell Jr: One, the State is being pitted against itself.

If you look at the very caption in this case, VOPA sued State officials in the name of the Commonwealth.

Secondly, there's a -- to the extent there is any authority, we have Ex parte Young here that gives rights to citizens, and we have a lot of cases that resulted most recently in CERSA, in which it was recognized that the general rule is that subordinate parts of States, subordinate State authorities, have no constitutional privileges and immunities that they can assert against their creator.

And if you wanted to know whether or not Ex parte Young should be extended into this area, it seems to me that the previous expectation would have been that the ASERSA tradition would have said, No, we don't want to extend into this area.

Justice Anthony Kennedy: Are there other areas -- and I can't come up with the name of the case which was suggested by counsel, your friend, in his opening argument.

I thought there were cases in which a subdivision is not -- a political subdivision of State is not allowed to build a dam by State law, and yet it can go to the Federal government, get a license, and build the dam anyway and just bypass the restrictions put upon its parent.

The agent has more powers than the principal gives it, because it relies on Federal law.

Earle Duncan Getchell Jr: I don't know the case.

And I don't believe anybody has cited as a principal case a decision of this Court that would say that.

Now, a State can do anything it -- it wanted to in terms of waiving its sovereign immunity.

Justice Anthony Kennedy: In this case, could Virginia sue VOPA in Federal court?

Earle Duncan Getchell Jr: I don't think -- I don't think it appropriately could.

Justice Anthony Kennedy: You think it could or could not?

Earle Duncan Getchell Jr: I do not think it appropriately could.

I don't think parts of the State can sue other parts of the State in Federal court.

Justice Anthony Kennedy: Well, it would be the parent suing the -- the subsidiary, and VOPA is not the State.

Earle Duncan Getchell Jr: VOPA is part of the State for purposes of sovereign immunity analysis, I would have thought.

But if somebody tried to get a personal recovery -- I mean, VOPA employees are ordinary State employees.

I presume they are subject to the Tort Claims Act, so it is a State agency.

But I don't know why the involuntary suing of the State in Federal court, which I think raises these traditional sovereignty dignity interests, would be reciprocal.

I mean, if for some strange reason the State wanted to sue VOPA, I don't know what the answer would be, because maybe they waived all their interests if they tried to do that.

But I think that the practical problem for this Court is that there's no limit.

There is no practical principal limit to what's being argued here.

So we set up this intermural political contest in Federal court as a matter of course, and I think, doctrinally, it's clear that it's an extension of Ex parte Young, beyond dispute, and I don't think it ought to be extended without doing a federalism inquiry.

And I think if you do a federalism inquiry, you ask the Hans question: Is -- would this have been regarded as anomalous and unheard of at the founding?

And I don't think there's--

Justice Ruth Bader Ginsburg: Bottom line, then, is that -- to restrict Congress's choice.

Congress wants to have an entity to attend this program for disabled people.

So the instruction we would like to give Congress is: Congress, if you want Federal courts to be able to enforce the Federal right, then you have to set it up as an agency, as a private agency.

You can't give -- Congress, you can't give the States a choice whether they would rather do it through private or public--

Earle Duncan Getchell Jr: --I don't think so, for two reasons.

One is--

Chief Justice John G. Roberts: I'm sorry.

I don't think so -- what?

You don't think Congress--

Earle Duncan Getchell Jr: --I don't think that -- I think Congress could have, under traditional waiver authority, under the spending power, have said: If you want to take the money, we're making a clear statement, you have to waive your sovereign immunity and be sued in State -- I mean, Federal court.

That didn't happen.

Also, let's not overlook the fact that the secretary has an administrative remedy in withholding the funds, and when this Court was faced with the question of whether or not to extend Ex parte Young in the Seminole tribe, the answer was: No, we're not going to do it, because there is an alternative--

Justice Antonin Scalia: --So you would acknowledge that if the State knew when it took the money that it was -- and when it created a State agency to administer the program that it was letting itself open to suit in Federal court under an Ex parte Young theory, then everything would be okay?

Earle Duncan Getchell Jr: --Well, no, because I don't think it would ever.

Justice Antonin Scalia: That would be a waiver of whatever sovereignty immunity interest it would have, wouldn't it?

Earle Duncan Getchell Jr: Congress conditioned on receiving the money on waiver, I suppose.

Justice Antonin Scalia: Congress could, but if they knew it in this instance when they accepted the money, you wouldn't have a case, would you?

Earle Duncan Getchell Jr: The law, under traditional waiver doctrine had been done right, no, we wouldn't have a case.

But remember, the law of the case in this interlocutory appeal is that there was no waiver.

That waiver was determined below and not appealed.

Justice Antonin Scalia: That's a good point.

Earle Duncan Getchell Jr: And so under the circumstances here we have a fairly peculiar specialized situation, but deciding in favor of the petitioners I think is fraught with peril and is doctrinally unprecedented and improper and we would ask that the decision of the Fourth Circuit be affirmed.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Galanter, have you three minutes remaining.

REBUTTAL ARGUMENT OF SETH M. GALANTER ON BEHALF OF THE PETITIONER

Mr. Galanter: I have three points for those three minutes.

First, we don't think that a State AG or State agency could sue a governor if State law prohibited it.

The question of capacity to sue, the power to sue is one of State law.

What we're saying here is that if a suit could go forward between two State agencies, between State agency and State officials in State court, and if that case involved a Federal issue, it can be heard in Federal court if the other requirements of Article III and Ex parte Young are being met.

Second, there was some suggestion that Ex parte Young is only about citizens.

But this Court's applied Ex parte Young to Indian tribes, allowing them to sue State officials.

It's allowed foreign countries to use Ex parte Young to sue State officials.

And the Respondents concede that political subdivisions, which can also be eliminated at will by the State, could use Ex parte Young.

Justice Stephen G. Breyer: Have you found any case, are there a lot, a few, none, where one State agency at a State level sues another in Federal court, period?

Say they have a rising under jurisdiction.

Mr. Galanter: No.

There aren't a lot of them.

Justice Stephen G. Breyer: Well, are there any?

Mr. Galanter: Other than in this protection advocacy system.

Justice Stephen G. Breyer: None?

Mr. Galanter: None.

Justice Stephen G. Breyer: See, nagging at me is some kind of Article III problem.

Maybe there is none.

I don't know.

There are none, though?

None?

Mr. Galanter: Well, but that's because Congress doesn't usually vest rights in--

Justice Stephen G. Breyer: It wouldn't have to.

They could get into all kinds of arguments about EPA and all kinds of Federal rights with each other.

I would think.

Mr. Galanter: --I don't think that's correct.

Justice Stephen G. Breyer: Yeah.

Mr. Galanter: I think that most of the time when a State is involved in a dispute with another State, it's about State law.

This is rather unique in that respect.

And that brings me to the third point, which is this notion of waiver.

We are not arguing here that they have waived their sovereign immunity.

What we are claiming is that they don't have sovereign immunity to these injunctive suits against the State officials.

We are not seeking damages and we haven't named the State in its own name.

But what we are suggesting is that it was the natural consequence as this Court decided in Frew, that when you, you know, accept the Federal money and you are bound by Federal duties and that the entity that you give the Federal right to has a Federal -- has a right to sue, that the Federal issues, Federal issues will be litigated in Federal court.

And I would say particularly that here just, of course Virginia renews every year to take the Federal money, but when it last amended the Federal statute or the State statute to create VOPA in its current structure, there were existing Ex parte Young suits against State officials.

Chief Justice John G. Roberts: Thank you counsel, I have one question of curiosity.

You said in your opening argument that 49 of 50 states limit in some way the executive's power in this area.

What's the one State.

Mr. Galanter: I am drawing that from the Indiana's amicus brief and I believe they identified New Jersey as a State that has a unitary executive.

Chief Justice John G. Roberts: Thank you.

The case is submitted.

Print this transcript Transcript: 

Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

Two federal statutes, the Development Disabilities Assistance and Bill of Rights Act of 2000 and the Protection and Advocacy for Individuals with Mental Illness Act offer States federal money to improve services for individuals with developmental disabilities and mental illness.

As a condition of receiving that funding, a state must establish a protection and advocacy or a P&A system “to protect and advocate the rights” of those people.

A P&A system must have authority to investigate incidence of abuse and neglect to obtain all records relevant to such an investigation and to “pursue legal administrative another appropriate remedies or approaches to ensure the protection of” its charges.

Virginia is one just eight states to have designated a state agency as its P&A system, something federal law allows, provided the agency has certain structural features that ensure its independence from state government.

The Virginia Office for Protection and Advocacy or VOPA has those required features the Governor of Virginia appoints fewer than one-third of its governing board and Virginia law gives it freedom to litigate without oversight from the executive.

VOPA filed this lawsuit after two patients died and a third was injured in state-run mental hospitals.

The defendant's respondents here are state officials in charge of the relevant facilities.

The suit claims that VOPA has a federal right to obtain access to certain records relating to those patients and it seeks declaratory and injunctive relief commanding respondents to produce those records.

Respondents filed a motion to dismiss the action on Eleventh Amendment sovereign immunity grounds.

But the District Court concluded that the suit was authorized by our decision in the case called Ex parte Young, which says that a suit for prospective relief against state officers for violation of federal law is not a suit against the state.

The Court of Appeals reversed.

It concluded that Ex parte Young did not apply to VOPA's suit because it is a contest between two state agencies, the adjudication of which in federal court would offend Virginia's sovereignty.

We granted certiorari and we now reverse.

The Eleventh Amendment confirms that states enter the union with their sovereign immunity intact.

That immunity protects the sovereign from being sued without its consent.

A State may waive its sovereign immunity at its pleasure.

And in some cases, Congress may abrogate it by appropriate legislation, but otherwise, federal courts may not entertain a private person suit against the State.

That case -- but in Ex parte Young, we adopted an important limit on state sovereign immunity.

That case established the principle, less delicately called a fiction that when a federal court commands a state official to do nothing more than refrain from violating federal law, that officer is not the state for sovereign immunity purposes.

We conclude that entertaining VOPA's action is consistent with that doctrine.

In Verizon Maryland Incorporated versus Public Service Commission of Maryland, we held that “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment barred suit, a court need only to conduct a straightforward inquiry into whether the complaint seeks relief properly characterized as prospective.”

There is no doubt VOPA's suit satisfies that straightforward inquiry.

It alleges that respondent's refusal to produce the requested records violates federal law and it seeks a prospective injunction requiring the production of those records.

Although respondents contend that VOPA's status as a state agency alters the calculus.

There is no warrant in our cases for making the validity of Ex parte Young of an Ex parte Young action turned upon the identity of the plaintiff.

We have indeed made exceptions to Ex parte Young but only on the basis of “the effect of the relief sought.”

For example, where a suit seeks to compel a state officer to disperse funds from the state treasury, the effect of VOPA's requested relief concededly is permissible since even respondent's agree that that relief could be obtained by a private party.

Respondents contend that entertaining VOPA's lawsuit would nevertheless infringe Virginia's sovereign interest because it diminishes the dignity of a state to have a federal court adjudicate a dispute between its components.

We do not agree at the outset, we doubt that a state statute is -- that a state's stature is diminished to any greater degree when its own agency polices its officer's compliance with federal law than when a private person hails those officers into federal court for the same purpose.

Something everyone agrees is proper.

And in this case, 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 failed to perceive what indignity is visited on the Commonwealth when by the operation of its own laws, VOPA is admitted to federal court as a plaintiff.

It is also argued that this lawsuit offends sovereign immunity because it divides Virginia against itself.

But that is not a distinctive consequence of letting the suit proceed in federal court under Ex parte Young.

The same result would follow if the matter were heard in state court.

And since this Court could still review the federal question at the behest of the state court loser, the plan would not even avoid the prospect of federal judges resolving VOPA's dispute with the respondents.

We have no occasion to pass on any other questions of federalism lurking in this case such as whether the underlying federal statutes are a proper exercise of Congress' enumerated powers.

We do not doubt of course that there are limits on the federal government's power to affect the internal operations of a state.

It may not commandeer a state's officers for example or dictate her capital, but those limits must be found in some textural -- textural 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 sovereign immunity.

Finally, we acknowledge that this lawsuit between two state agencies in federal court is something of a novelty.

And that what is novel is often novel because of past constitutional doubts.

That is not likely the reason here.

The likely explanation is that state agencies do not often possess federal rights against their parent states and they cannot sue to enforce those rights unless the parent states consent to give them independent litigating authority.

We are unaware that these conditions have ever presented themselves except in connection with the unusual federal statute at issue here.

For this and other reasons set forth more fully in our opinion, we reverse the judgment of the Court of Appeals and remand the case before the proceeding is consistent with our opinion.

Justice Kennedy has filed a concurring opinion in which Justice Thomas has joined.

The Chief Justice has filed a descending opinion in which Justice Alito has joined.

Justice Kagan took no part in the consideration or decision of the case.