Supreme Court Update: Sossamon v. Texas (08-1438) and Virginia Office for Protection and Advocacy v. Stewart (09-529)

April 25, 2011 Supreme Court Update

Greetings, Court fans!

Last week, the Court issued a pair of decisions on state sovereign immunity, Sossamon v. Texas (08-1438) and Virginia Office for Protection and Advocacy v. Stewart (09-529).

In Sossamon v. Texas (08-1438), the Court held 6-2 that States did not consent to waive their sovereign immunity to suits for money damages under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") (Justice Kagan did not participate). Section 3 of RLUIPA restricts any government entity from imposing a "substantial burden" on the religious exercise of an institutionalized person in a program or activity that receives Federal financial assistance. RLUIPA allows a person to "assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." Petitioner, a Texas inmate, brought suit challenging prison policies restricting inmates from attending religious services and using the prison chapel. The district court found that petitioner's claim for money damages was barred by sovereign immunity, and the Fifth Circuit affirmed. (The petitioner's claims for injunctive relief eventually became moot, as the prison changed its policies.)

The Court, led by Justice Thomas, affirmed. A waiver of States' sovereign immunity must be "unequivocally expressed" in the text of the relevant statute. Here, RLUIPA's authorization of "appropriate relief against a government" was ambiguous about the type of relief it includes. Where the defendant is a sovereign, context suggests that monetary damages are not "appropriate." The Court rejected the petitioner's argument that States were on notice that they would be liable for damages because Congress enacted RLUIPA under the Spending Clause, and Spending Clause legislation operates as a contract, as to which monetary damages are always available. While the Court has used a contract-law analogy to describe Spending Clause legislation, it has always been careful not to imply that suits under the Spending Clause are actually suits in contract. In any event, contracts with a sovereign do not traditionally confer a right of action for damages. The Court also rejected the petitioner's argument that §1003 of the Rehabilitation Act Amendments of 1986, which waives sovereign immunity for violations of any federal statute "prohibiting discrimination" by recipients of federal funding, applied. Even assuming that the residual clause of §1003 could constitute an unequivocal textual waiver, §3 of RLUIPA prohibited a "substantial burden" on religious exercise, not "discrimination."

Justice Sotomayor, joined by Justice Breyer, dissented. RLUIPA conditions States' receipt of federal funding on their consent to suit, and confers a private right of action for violations. Thus, in the dissenters' view, States clearly are on notice that, by accepting federal funds, they waive their sovereign immunity to suit (including suits for damages). The question of "appropriate relief" in such suits must be analyzed under general remedies principles. Under the Court's traditional approach, money damages are the default, and equitable relief the exception. In two earlier decisions, the Court made clear that statutory language authorizing all "appropriate relief" included relief for money damages. (The majority distinguished these cases on the ground that they concerned municipal entities, which do not have sovereign immunity.) As a policy matter, the dissent feared that the unavailability of monetary relief would effectively shield unlawful practices and policies from judicial review, as inmates are transferred to different facilities or, as happened here, officials change the policy while litigation is pending.

In Virginia Office for Protection and Advocacy v. Stewart (09-529), the Court turned to the doctrine of Ex Parte Young, and held that the doctrine allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same State. The unusual circumstances of this case arose from the Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("DD Act") which offers States federal money to improve services for people with developmental disabilities. As a condition of that funding, the State must establish a protection and advocacy system ("P&A system") with power to investigate reports of abuse and neglect, obtain relevant records, and to litigate on behalf of its charges. The P&A system may either be an independent state agency or a private nonprofit entity. While most States designated private nonprofit entities, Virginia designated a state agency, the Virginia Office for Protection and Advocacy ("VOPA") as its P&A system. VOPA brought suit in federal district court after state officials at state-run mental hospitals refused to turn over records concerning patient injuries and deaths VOPA was investigating. The officials moved to dismiss on sovereign immunity grounds, but the court denied the motion under the doctrine of Ex Parte Young. The Fourth Circuit reversed. The Fourth Circuit saw the suit as 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 reversed, 6-2 (minus Justice Kagan again), with Justice Scalia writing for the majority. The Ex Parte Young doctrine permits suits for injunctive relief against state officials. "It rests on the premise—less delicately called a ‘fiction'…—that when a federal court commands a state official to do nothing more than refrain from violating a federal law, he is not the State for sovereign immunity purposes." To determine whether Ex Parte Young applies, a court need only conduct a "straightforward inquiry" into whether the complaint alleges an ongoing violation of federal law, and seeks prospective relief. Here, there was no doubt that VOPA's suit satisfied both prongs of that inquiry. All parties and the dissent conceded that Ex Parte Young would apply if the P&A system bringing suit were a private entity. The fact that VOPA is a state agency rather than a private entity should not change the calculus. Contrary to the dissent's view, a State's stature is no more diminished by being haled into federal court by its own agency, than it would be by a private person. Here, it was Virginia's choice to designate a state agency as its P&A system.

Justice Kennedy, joined by Thomas, wrote a concurring opinion to highlight potential constitutional problems with the DD Act, i.e., that Congress may have exceeded its spending power by "forcing a state that wishes to designate a public agency as its advocacy system to allow intramural suits … or by requiring that the agency be structured as Congress directs." However, since the parties did not raise these issues and "the specter of a statute's unconstitutionality cannot be permitted to distort the antecedent question of jurisdiction," the concurring justices agreed with the majority's application of Ex Parte Young in this case.

The Chief Justice, joined by Alito, dissented. In their view, a suit brought by one arm of the State against another is an entirely different beast from private litigation. As the Chief vividly put it: "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 to getting there that attracts notice." This difference renders suits between arms of the State "not suitable for mere rote application of Ex Parte Young." While Virginia may have consented to suits between its components in its own courts, it should not be subject to such suits in federal courts against its wishes (or at least, the wishes of one of its components).

Also this week, the Court denied cert in Kiyemba v. Obama (10-755), brought by Guantanamo detainees seeking release from custody into the United States. The Court initially granted cert in the case to address whether a district court may order the release of an unlawfully held prisoner into the United States where no other remedy is available. The Court subsequently learned that each of the two remaining petitioners had received and rejected at least two offers of resettlement. On remand, the D.C. Circuit again held that the petitioners were not entitled to release into the United States. This time, cert was denied. Justice Breyer, along with Kennedy, Ginsburg, and Sotomayor, submitted a statement indicating that the offers of resettlement, lack of evidence challenging their appropriateness, and the government's expressed commitment to resettlement "transform petitioners' claim." He emphasized that the petitioners "may of course raise their original issue (or related issues)" should circumstances materially change.

The Court also granted cert in Judulang v. Holder (10-694), which asks: "Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal" under the Immigration and Nationality Act.

Finally, the Court asked the SG to express his views on the cert petition in Compton Unified School District v. Addison (10-886), which would ask, "whether the special education due process hearing procedures under the Individuals with Disabilities Education Act . . . allow a parent to bring a claim of negligence against a school district, or whether due process hearing claims are limited to disputes regarding intentional decisions made by the school district."

As always, thanks for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400