VOPA v. Reinhard and Ex parte Young: Why Cert. Should (and Will) Be Granted

For Federal Courts fans, one of the more intriguing cases in which a cert. petition is currently pending is a little-noticed lawsuit out of the Fourth Circuit, Virginia Office of Protection & Advocacy v. Reinhard. In Reinhard, the Fourth Circuit, in an opinion by Judge Wilkinson, held that state-created public agencies are not entitled to invoke the Ex parte Young exception to Eleventh Amendment immunity in suits against state officials in their official capacities--that sovereign immunity in general precludes the federal courts from resolving such "intramural" conflicts, even those arising under federal law.

To be blunt, such a conclusion is rather inconsistent with the doctrine of Ex parte Young (which has never looked to the identity of the plaintiff, but has instead turned on what Justice Scalia described in 2002 as "a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."). More than just a problematic application of Ex parte Young, though, such analysis could also open the door for courts to identify additional previously unrecognized requirements for Young actions. With those concerns in mind, Reinhard first unsuccessfully sought rehearing en banc (with the support of the United States as amicus curiae), before filing a petition for certiorari. [Full disclosure: I co-authored an amicus brief on behalf of a group of federal courts scholars in support of certiorari.]

Rather than dispose of the cert. petition, the Court called in January for the views of the SG as to whether cert. should be granted. This maneuver was particularly curious at the time, since the Government had already taken a position in this case--arguing in favor of rehearing en banc in the Court of Appeals. Thus, whether or not the Court would be swayed by the SG's view as to cert., it seemed rather clear what that view would be.

But, although the government has yet to share its views, a little-noticed development three weeks ago probably sealed the deal: The Seventh Circuit, sitting en banc in Indiana Protection & Advocacy Services v. Indiana Family & Social Services Admin., expressly disagreed with the Fourth Circuit's analysis. Although Judge Easterbrook dissented from other parts of the opinion (which was otherwise 8-1), the Seventh Circuit was unanimous in concluding that state-created agencies may, in fact, invoke Ex parte Young against their own state's officers, especially to enforce the statute at issue in these cases--the Protection and Advocacy for Individuals With Mental Illness (PAIMI) Act. Indeed, as Judge Hamilton explained,

Indiana's use of IPAS's status as an independent state agency to support the State's late reliance on the Eleventh Amendment to block this lawsuit also seems, frankly, unfair. Congress gave each state the choice to establish a protection and advocacy system as either an independent state agency or a private not-for-profit entity. Indiana made the choice to set up IPAS as an independent state agency. If we gave that choice any weight in the Eleventh Amendment inquiry, we would be permitting Indiana to use its own choice to set up an independent state agency as a means to shield its state hospitals and institutions from the very investigatory and oversight powers that Congress funded to protect some of the state's most vulnerable citizens. That result would be strange indeed. The combination, moreover, of the state's choice to set up an independent agency and its failure to raise the Eleventh Amendment issue itself also makes it difficult to see how this lawsuit poses a serious threat to any special sovereignty interest of the state.

Whatever the merits, then, there is now a clear and sharp circuit split on a potentially significant--but usefully narrow--question concerning the scope of Ex parte Young remedies. Moreover, the split is among judges whose views tend to receive particular attention on the Court--Posner and Easterbrook in support of the Seventh Circuit's analysis (Posner penned a separate concurrence); Wilkinson in the other direction. Finally, the Supreme Court has not really taken a significant state sovereign immunity case since Justice O'Connor's parting gift in Central Virginia Community College v. Katz in 2006. It will be interesting to see whether the three new Justices (and by then, perhaps four) have views that materially differ from their predecessors. [In 2006, then-Judge Sotomayor wrote an opinion for the Second Circuit closely resembling the Seventh Circuit's analysis in IPAS.]

One last thought: Because the SG's office no doubt authorized the government's amicus brief in the Fourth Circuit, it's entirely possible that, if confirmed, then-Justice Kagan would recuse. I still don't think that hurts the chances for cert., though. After all, Justices Scalia and Thomas have repeatedly written in favor of the traditional understanding of Ex parte Young, and, of the current Justices, only Justice Kennedy seems more positively disposed toward Judge Wilkinson's approach.

All of this is a long way of saying that I suspect there will be some fun and serious heavy lifting later this year on the continuing meaning, relevance, and force of Ex parte Young. Future Federal Courts students, beware!