Justice Scalia forged a coalition in favor of permitting suits against states. He wrote the Court’s opinion that the Virginia Office for Protection and Advocacy (VOPA), set up as a state agency, can bring suit in federal court to compel state officials in charge of state-run mental hospitals to release medical records.
Scalia’s opinion was joined by Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor. Kennedy wrote a concurrence joined by Thomas. Roberts dissented, joined by Alito. Kagan was recused. The opinion has some fabulous language about the enforcement of federal law. VOPA v. Stewart, http://www.supremecourt.gov/opinions/10pdf/09-529.pdf (April 19, 2011). Congratulations go to Seth Galanter of Morrison Foerster for this amazing win! The SG filed an amicus brief and argued in support of VOPA (see here). NSCLC filed an amicus brief joined by AARP, the ARC, NHeLP, and United Cerebral Palsy (see here).
The Protection and Advocacy for Individuals with Mental Illness Act (PAIMI Act), Pub. L. No. 99-319, 100 Stat. 478 (1986) (codified as amended at 42 U.S.C. § 10801 et seq.) gives states the choice of setting up their Protection and Advocacy (P&A) system for people with disabilities either as a state agency or a private nonprofit entity. Virginia is one eight states that have chosen to establish their P&A organization as a state agency. In its investigation of possible abuse and neglect, VOPA sought medical records from state-run mental hospitals. State officials in charge of those institutions (Respondents) refused to supply the records, citing state law privilege shielding medical peer-review materials from disclosure. VOPA then proceeded to district court, in which the Respondents raised a sovereign immunity defense. The district court denied the Respondents’ motion to dismiss, but the Fourth Circuit reversed, holding that the dignity of states was offended by this “intramural” dispute.
Reversing the Fourth Circuit, Scalia observed that, as the Court held in Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645 (2002), suits may proceed against the state under Ex parte Young, 209 U.S. 123 (1908), if the injury is ongoing and the relief sought is prospective. He noted that VOPA’s suit met that test and even the Respondents conceded that if VOPA was a private entity, its suit could proceed under Ex parte Young. He stated: “there is no warrant in our cases for making the validity of an Ex parte Young action turn on the identity of the plaintiff.” Focusing on the relief sought, Scalia distinguished Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 287 (1997), in which the suit was the functional equivalent of a quiet title suit.
The Respondents argued that the PAIMI statute establishes an alternative remedial scheme. Citing Verizon, Scalia retorted: “The fact that the Federal Government can exercise oversight of a federal spending program and even withhold or withdraw 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.’” This statement is truly striking coming from the pen of Scalia, who wrote in concurrence in PhRMA v. Walsh, 538 U.S. 644, 675 (2003), that the termination of federal funds provides the remedy for the state’s failure to comply with its obligations under Medicaid.
Scalia turned to the contention of the dissent that the state’s dignity was infringed upon by a suit among its components. EmasculatingCoeur d’Alene’s broad, indeed unbounded, treatment of state dignity, Scalia stated: “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.”
Scalia rejected the Fourth Circuit’s approach of sending the case to state court, noting that the dignity of the state would be no less impacted by a decision in this intramural dispute in that forum.
In oral argument, Scalia engaged with Respondents’ lawyer regarding their argument that the state did not know it was subjecting itself to federal suit by establishing its P&A as a state agency. This line of argument seeks to expand upon the reasoning in Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304 (2006). Scalia responded to the argument in a footnote of the opinion, without citingArlington. He wrote: “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.”
Kennedy’s concurrence begins by describing Ex parte Young and Verizon as involving “preenforcement assertion of a defense.” But then he asserted that VOPA may invoke Ex parte Young, without limiting such suits to defense against enforcement. He stated: “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.” This indicates his agreement that Ex parte Young may be extended to suits that are not defensive.
Kennedy observed that the state’s option of establishing its P&A as a private entity “diminished to some extent” the “affront to the State’s dignity.” He then raised the question, not presented in the case, of whether the underlying federal scheme is valid. He stated:
“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…. 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.”
But then turning back to the question presented, he concluded that VOPA could “rely on Young to avoid the sovereign immunity bar.”
Roberts’ dissent was very narrowly focused on the issue of a state agency suing state officials. Therefore, the dissent has very limited reach. The dissent stated: “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.”