Suits Against State Officials

Courts may open their doors for relief against government wrongs under the
doctrine that sovereign immunity does not prevent a suit to restrain individual
officials, thereby restraining the government as well.113 The doctrine is built upon a
double fiction: that for purposes of the sovereign’s immunity, a suit against an
official is not a suit against the government, but for the purpose of finding state
action to which the Constitution applies, the official’s conduct is that of the
state.114 The doctrine preceded but is most noteworthily associated with the decision
in Ex parte Young,115 a case that deserves the overworked adjective, seminal.
Young arose when a state legislature passed a law reducing railroad rates and
providing severe penalties for any railroad that failed to comply with the law.
Plaintiff railroad stockholders brought a federal action to enjoin Young, the state
attorney general, from enforcing the law, alleging that it was unconstitutional and
that they would suffer irreparable harm if he were not prevented from acting. An
injunction was granted forbidding Young from acting on the law, an injunction he
violated by bringing an action in state court against noncomplying railroads; for
this action he was adjudged in contempt. If the Supreme Court had held that the
injunction was not permissible, because the suit was one against the state, there
would have been no practicable way for the railroads to attack the statute without
placing themselves in great danger. They could have disobeyed it and alleged its
unconstitutionality as a defense in enforcement proceedings, but if they were wrong
about the statute’s validity the penalties would have been devastating.116 On the
other hand, effectuating constitutional rights through an injunction would not have
been possible had the injunction been deemed to be a suit against the state.
In deciding Young, the Court faced inconsistent lines of cases, including
numerous precedents for permitting suits against state officers. Chief Justice
Marshall had begun the process in Osborn by holding that suit was barred only when
the state was formally named a party.117 He presently was required to modify that
decision and preclude suit when an official, the governor of a state, was sued in his
official capacity,118 but relying on Osborn and reading Madrazo narrowly, the Court
later held in a series of cases that an official of a state could be sued to prevent
him from executing a state law in conflict with the Constitution or a law of the
United States, and the fact that the officer may be acting on behalf of the state or
in response to a statutory obligation of the state did not make the suit one against
the state.119 Another line of cases began developing a more functional, less
formalistic concept of the Eleventh Amendment and sovereign immunity, one that
evidenced an increasing wariness toward affirmatively ordering states to relinquish
state-controlled property120 and culminated in the broad reading of Eleventh
Amendment immunity in Hans v. Louisiana.121
Two of the leading cases, as were many cases of this period, were suits
attempting to prevent Southern states from defaulting on bonds.122 In Louisiana v.
Jumel,123 a Louisiana citizen sought to compel the state treasurer to apply a sinking
fund that had been created under the earlier constitution for the payment of the
bonds after a subsequent constitution had abolished this provision for retiring the
bonds. The proceeding was held to be a suit against the state.124 Then, In re
Ayers125 purported to supply a rationale for cases on the issuance of mandamus or
injunctive relief against state officers that would have severely curtailed federal
judicial power. Suit against a state officer was not barred when his action, aside
from any official authority claimed as its justification, was a wrong simply as an
individual act, such as a trespass, but if the act of the officer did not constitute
an individual wrong and was something that only a state, through its officers, could
do, the suit was in actuality a suit against the state and was barred.126 That is, the
unconstitutional nature of the state statute under which the officer acted did not
itself constitute a private cause of action. For that, one must be able to point to
an independent violation of a common law right.127
Although Ayers was in all relevant points on all fours
with Young,128 the Young Court held that the injunction had properly issued against
the state attorney general, even though the state was in effect restrained as well.
“The act to be enforced is alleged to be unconstitutional, and, if it be so, the use
of the name of the State to enforce an unconstitutional act to the injury of the
complainants is a proceeding without the authority of and one which does not affect

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the State in its sovereign or governmental capacity. It is simply an illegal act upon
the part of a state official in attempting by the use of the name of the State to
enforce a legislative enactment which is void because unconstitutional. If the act
which the state Attorney General seeks to enforce be a violation of the Federal
Constitution, the officer in proceeding under such enactment comes into conflict with
the superior authority of that Constitution, and he is in that case stripped of his
official or representative character and is subject in his person to the consequences
of his individual conduct.”129 Justice Harlan was the only dissenter, arguing that in
law and fact the suit was one only against the state and that the suit against the
individual was a mere “fiction.”130
The “fiction” remains a mainstay of our jurisprudence.131 It accounts for a great
deal of the litigation brought by individuals to challenge the carrying out of state
policies. Suits against state officers alleging that they are acting pursuant to an
unconstitutional statute are the standard device by which to test the validity of
state legislation in federal courts prior to enforcement and thus interpretation in
the state courts.132 Similarly, suits to restrain state officials from taking certain
actions in contravention of federal statutes133 or to compel the undertaking of
affirmative obligations imposed by the Constitution or federal laws134 are common.
For years, moreover, the accepted rule was that suits prosecuted against state
officers in federal courts upon grounds that they are acting in excess of state
statutory authority135 or that they are not doing something required by state
law136 are not precluded by the Eleventh Amendment or its emanations of sovereign
immunity, provided only that there are grounds to obtain federal
jurisdiction.137 However, in Pennhurst State School & Hospital v. Halderman,138 the
Court, five-to-four, held that Young did not permit suits in federal courts against
state officers alleging violations of state law. In the Court’s view, Young was
necessary to promote the supremacy of federal law, a basis that disappears if the
violation alleged is of state law. The Court also still adheres to the doctrine,
first pronounced in Madrazo,139 that some suits against officers are “really” against
the state140 and are barred by the state’s immunity, such as when the suit involves
state property or asks for relief which clearly calls for the exercise of official
authority, such as paying money out of the treasury to remedy past harms.141
For example, a suit to prevent tax officials from collecting death taxes arising
from the competing claims of two states as being the last domicile of the decedent
foundered upon the conclusion that there could be no credible claim of violation of
the Constitution or federal law; state law imposed the obligation upon the officials
and “in reality” the action was against the state.142 Suits against state officials to
recover taxes have also been made increasingly difficult to maintain. Although the
Court long ago held that the sovereign immunity of the state prevented a suit to
recover money in the state treasury,143 it also held that a suit would lie against a
revenue officer to recover tax moneys illegally collected and still in his
possession.144 Beginning, however, with Great Northern Life Ins. Co. v. Read,145 the
Court has held that this kind of suit cannot be maintained unless the state expressly
consents to suits in the federal courts. In this case, the state statute provided for
the payment of taxes under protest and for suits afterward against state tax
collection officials for the recovery of taxes illegally collected, which revenues
were required to be kept segregated.146
In Edelman v. Jordan,147 the Court appeared to begin to lay down new restrictive
interpretations of what the Eleventh Amendment proscribed. The Court announced that a
suit “seeking to impose a liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment.”148 What the Court actually held,
however, was that it was permissible for federal courts to require state officials to
comply in the future with claims payment provisions of the welfare assistance
sections of the Social Security Act, but that they were not permitted to hear claims
seeking, or issue orders directing, payment of funds found to be wrongfully
withheld.149 Conceding that some of the characteristics of prospective and retroactive
relief would be the same in their effects upon the state treasury, the Court
nonetheless believed that retroactive payments were equivalent to the imposition of
liabilities which must be paid from public funds in the treasury, and that this was
barred by the Eleventh Amendment. The spending of money from the state treasury by
state officials shaping their conduct in accordance with a prospective-only
injunction is “an ancillary effect” which “is a permissible and often an inevitable
consequence” of Ex parte Young, whereas “payment of state funds . . . as a form of
compensation” to those wrongfully denied the funds in the past “is in practical

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effect indistinguishable in many aspects from an award of damages against the
State.”150
That Edelman in many instances will be a formal restriction rather than an actual one
is illustrated by Milliken v. Bradley,151 in which state officers were ordered to
spend money from the state treasury in order to finance remedial educational programs
to counteract the effects of past school segregation; the decree, the Court said,
“fits squarely within the prospective-compliance exception reaffirmed
by Edelman.”152 Although the payments were a result of past wrongs, of past
constitutional violations, the Court did not view them as “compensation,” inasmuch as
they were not to be paid to victims of past discrimination but rather used to better
conditions either for them or their successors.153 The Court also
applied Edelman in Papasan v. Allain,154 holding that a claim against a state for
payments representing a continuing obligation to meet trust responsibilities stemming
from a 19th century grant of public lands for benefit of education of the Chickasaw
Indian Nation is barred by the Eleventh Amendment as indistinguishable from an action
for past loss of trust corpus, but that an Equal Protection claim for present unequal
distribution of school land funds is the type of on-going violation for which
the Eleventh Amendment does not bar redress.
In Idaho v. Coeur d’Alene Tribe,155 the Court further narrowed Ex parte Young. The
implications of the case are difficult to predict, because of the narrowness of the
Court’s holding, the closeness of the vote (5–4), and the inability of the majority
to agree on a rationale. The holding was that the Tribe’s suit against state
officials for a declaratory judgment and injunction to establish the Tribe’s
ownership and control of the submerged lands of Lake Coeur d’Alene is barred by
the Eleventh Amendment. The Tribe’s claim was based on federal law—Executive Orders
issued in the 1870s, prior to Idaho statehood. The portion of Justice Kennedy’s
opinion that represented the opinion of the Court concluded that the Tribe’s
“unusual” suit was “the functional equivalent of a quiet title action which
implicates special sovereignty interests.”156 The case was “unusual” because state
ownership of submerged lands traces to the Constitution through the “equal footing
doctrine,” and because navigable waters “uniquely implicate sovereign
interests.”157 This was therefore no ordinary property dispute in which the state
would retain regulatory control over land regardless of title. Rather, grant of the
“far-reaching and invasive relief ” sought by the Tribe “would diminish, even
extinguish, the State’s control over a vast reach of lands and waters long . . .
deemed to be an integral part of its territory.”158
A separate part of Justice Kennedy’s opinion, joined only by Chief Justice Rehnquist,
advocated more broad scale diminishment of Young. The two would apply case-by-case
balancing, taking into account the availability of a state court forum to resolve the
dispute and the importance of the federal right at issue. Concurring Justice
O’Connor, joined by Justices Scalia and Thomas, rejected such balancing. Young was
inapplicable, Justice O’Connor explained, because “it simply cannot be said” that a
suit to divest the state of all regulatory power over submerged lands “is not a suit
against the State.”159
Addressing a suit by an independent state agency against state health officials, the
Court, quoting Pennhurst, reiterated “that the general criterion for determining when
a suit is in fact against the sovereign is the effect of the relief sought.”160
The agency sought access to records of state-run hospitals in federal court. Six
Justices upheld the effort: The relief sought was straightforward and prospective,
and not a burdensome encroachment on state sovereignty.161
Thus, as with the cases dealing with suits facially against the states themselves,
the Court’s greater attention to state immunity in the context of suits against state
officials has resulted in a mixed picture, of some new restrictions, of the lessening
of others. But a number of Justices have increasingly resorted to the Eleventh
Amendment as a means to reduce federal-state judicial conflict.162 One may, therefore,
expect this to be a continuingly contentious area.

Tort Actions Against State Officials.

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to extend to actions against state officials for damages arising out of willful and
negligent disregard of state laws.165 The reach of the rule is evident in Scheuer v.
Rhodes,166 in which the Court held that plaintiffs were not barred by the Eleventh
Amendment or other immunity doctrines from suing the governor and other officials of
a state alleging that they deprived plaintiffs of federal rights under color of state
law and seeking damages, when it was clear that plaintiffs were seeking to impose
individual and personal liability on the officials. There was no “executive immunity”
from suit, the Court held; rather, the immunity of state officials is qualified and
varies according to the scope of discretion and responsibilities of the particular
office and the circumstances existing at the time the challenged action was taken.167

Footnotes
113
See, e.g. Larson v. Domestic and Foreign Corp., 337 U.S. 682
(1949). It should be noted, however, that as a threshold issue in
lawsuits against state employees or entities, courts must look to
whether the sovereign is the real party in interest to determine
whether state sovereign immunity bars the suit. See Hafer v.
Melo, 502 U.S. 21, 25 (1991). Court must determine “whether the
remedy sought is truly against the sovereign,” and if an “action is
in essence against a State even if the State is not a named party,
then the State is the real party in interest and is entitled to
invoke the Eleventh Amendment’s protections.” See Lewis v.
Clarke, 581 U.S. ___, No. 15–1500, slip op. 5–6 (2017). As a
result, arms of the state, such as a state university, enjoy
sovereign immunity. Id. at 6. Likewise, lawsuits brought against
employees in their official capacity “may also be barred by
sovereign immunity.” Id. 

114
C. WRIGHT, THE LAW OF FEDERAL COURTS § 48 (4th ed. 1983). 

115
209 U.S. 123 (1908). 

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116
In fact, the statute was eventually held to be constitutional.
Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352 (1913). 

117
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738
(1824). 

118
Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 

119
Davis v. Gray, 83 U.S. (16 Wall.) 203 (1872); Board of Liquidation
v. McComb, 92 U.S. 531 (1875); Allen v. Baltimore & Ohio R.R., 114
U.S. 311 (1885); Rolston v. Missouri Fund Comm’rs, 120 U.S. 390
(1887); Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Reagan v.
Farmers’ Loan & Trust Co., 154 U.S. 362 (1894); Smyth v. Ames, 169
U.S. 466 (1898); Scranton v. Wheeler, 179 U.S. 141 (1900). 

120
Judicial reluctance to confront government officials over
government-held property did not extend in like manner in a federal
context, as was evident in United States v. Lee, the first case in
which the sovereign immunity of the United States was claimed and
rejected. United States v. Lee, 106 U.S. 196 (1882). See Article

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III, “Suits Against United States Officials.” However, the Court
sustained the suit against the federal officers by only a 5-to-4
vote, and the dissent presented the arguments that were soon to
inform Eleventh Amendment cases. 

121
134 U.S. 1 (1890). 

122
See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A
Reinterpretation, 83 COLUM. L. REV. 1889, 1968–2003 (1983);
Orth, The Interpretation of the Eleventh Amendment, 1798–1908: A
Case Study of Judicial Power, 1983 U. ILL. L. REV. 423. 

123
107 U.S. 711 (1882). 

124
“The relief asked will require the officers against whom the
process is issued to act contrary to the positive orders of the
supreme political power of the State, whose creatures they are, and
to which they are ultimately responsible in law for what they do.
They must use the public money in the treasury and under their
official control in one way, when the supreme power has directed
them to use it in another, and they must raise more money by

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taxation when the same power has declared that it shall not be
done.” 107 U.S. at 721. See also Christian v. Atlantic & N.C.
R.R., 133 U.S. 233 (1890). 

125
123 U.S. 443 (1887). 

126
123 U.S. at 500–01, 502. 

127
Ayers sought to enjoin state officials from bringing suit under an
allegedly unconstitutional statute purporting to overturn a
contract between the state and the bondholders to receive the bond
coupons for tax payments. The Court asserted that the state’s
contracts impliedly contained the state’s immunity from suit, so
that express withdrawal of a supposed consent to be sued was not a
violation of the contract; but, in any event, because any violation
of the assumed contract was an act of the state, to which the
officials were not parties, their actions as individuals in
bringing suit did not breach the contract. 123 U.S. at 503, 505–06.
The rationale had been asserted by a four-Justice concurrence in
Antoni v. Greenhow, 107 U.S. 769, 783 (1882). See also Cunningham
v. Macon & Brunswick R.R., 109 U.S. 446 (1883); Hagood v.
Southern, 117 U.S. 52 (1886); North Carolina v. Temple, 134 U.S. 22
(1890); In re Tyler, 149 U.S. 164 (1893); Baltzer v. North
Carolina, 161 U.S. 240 (1896); Fitts v. McGhee, 172 U.S. 516
(1899); Smith v. Reeves, 178 U.S. 436 (1900). 

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128
Ayers “would seem to be decisive of the Young litigation.” C.
WRIGHT, THE LAW OF FEDERAL COURTS § 48 at 288 (4th ed. 1983).
The Young Court purported to distinguish and to preserve Ayers but
on grounds that either were irrelevant to Ayers or that had been
rejected in the earlier case. Ex parte Young, 209 U.S. 123, 151,
167 (1908). Similarly, in a later case, the Court continued to
distinguish Ayers but on grounds that did not in fact distinguish
it from the case before the Court, in which it permitted a suit
against a state revenue commissioner to enjoin him from collecting
allegedly unconstitutional taxes. Georgia R.R. & Banking Co. v.
Redwine, 342 U.S. 299 (1952). 

129
Ex parte Young, 209 U.S. 123, 159–60 (1908). The opinion did not
address the issue of how an officer “stripped of his official . . .
character” could violate the Constitution, in that the Constitution
restricts only “state action,” but the double fiction has been
expounded numerous times since. Thus, for example, it is well
settled that an action unauthorized by state law is state action
for purposes of the Fourteenth Amendment. Home Tel. & Tel. Co. v.
City of Los Angeles, 227 U.S. 278 (1913). The contrary premise of
Barney v. City of New York, 193 U.S. 430 (1904), though eviscerated
by Home Tel. & Tel. was not expressly disavowed until United States
v. Raines, 362 U.S. 17, 25–26 (1960). 

130
Ex parte Young, 209 U.S. 123, 173–74 (1908). In the process of
limiting application of Young, a Court majority referred to “the
Young fiction.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281
(1997). 

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131
E.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 156 n.6 (1978)
(rejecting request of state officials being sued to restrain
enforcement of state statute as pre-empted by federal law
that Young be overruled); Florida Dep’t of State v. Treasure
Salvors, 458 U.S. 670, 685 (1982). 

132
See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S.
278 (1913); Truax v. Raich, 239 U.S. 33 (1915); Cavanaugh v.
Looney, 248 U.S. 453 (1919); Terrace v. Thompson, 263 U.S. 197
(1923); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (1925);
Massachusetts State Grange v. Benton, 272 U.S. 525 (1926); Hawks v.
Hamill, 288 U.S. 52 (1933). See also Graham v. Richardson, 403 U.S.
365 (1971) (enjoining state welfare officials from denying welfare
benefits to otherwise qualified recipients because they were
aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining city
welfare officials from following state procedures for termination
of benefits); Milliken v. Bradley, 433 U.S. 267 (1977) (imposing
half the costs of mandated compensatory education programs upon
state through order directed to governor and other officials). On
injunctions against governors, see Continental Baking Co. v.
Woodring, 286 U.S. 352 (1932); Sterling v. Constantin, 287 U.S. 378
(1932). Applicable to suits under this doctrine are principles of
judicial restraint—constitutional, statutory, and prudential—
discussed under Article III. 

133
E.g., Edelman v. Jordan, 415 U.S. 651, 664–68 (1974); Ray v.
Atlantic Richfield Co., 435 U.S. 151 (1978). 

134

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E.g., Milliken v. Bradley, 433 U.S. 267 (1977); Edelman v.
Jordan, 415 U.S. 651, 664–68 (1974); Quern v. Jordan, 440 U.S. 332,
346–49 (1979). 

135
E.g., Pennoyer v. McConnaughy, 140 U.S. 1 (1891); Scully v.
Bird, 209 U.S. 481 (1908); Atchison, T. & S. F. Ry. v.
O’Connor, 223 U.S. 280 (1912); Greene v. Louisville & Interurban
R.R., 244 U.S. 499 (1977); Louisville & Nashville R.R. v.
Greene, 244 U.S. 522 (1917). Property held by state officials on
behalf of the state under claimed state authority may be recovered
in suits against the officials, although the court may not
conclusively resolve the state’s claims against it in such a suit.
South Carolina v. Wesley, 155 U.S. 542 (1895); Tindal v.
Wesley, 167 U.S. 204 (1897); Hopkins v. Clemson College, 221 U.S.
636 (1911). See also Florida Dep’t of State v. Treasure
Salvors, 458 U.S. 670 (1982), in which the eight Justices who
agreed that the Eleventh Amendment applied divided 4-to-4 over the
proper interpretation. 

136
E.g., Rolston v. Missouri Fund Comm’rs, 120 U.S. 390 (1887);
Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912); Johnson
v. Lankford, 245 U.S. 541, 545 (1918); Lankford v. Platte Iron
Works Co., 235 U.S. 461, 471 (1915); Davis v. Wallace, 257 U.S.
478, 482–85 (1922); Glenn v. Field Packing Co., 290 U.S. 177, 178
(1933); Lee v. Bickell, 292 U.S. 415, 425 (1934). 

137
Typically, the plaintiff would be in federal court under diversity
jurisdiction, cf. Martin v. Lankford, 245 U.S. 547, 551 (1918),
perhaps under admiralty jurisdiction, Florida Dep’t of State v.

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Treasure Salvors, 458 U.S. 670 (1982), or under federal question
jurisdiction. Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535
U.S. 635 (2002). In the last instance, federal courts are obligated
first to consider whether the issues presented may be decided on
state law grounds before reaching federal constitutional grounds,
and thus relief may be afforded on state law grounds
solely. Cf. Siler v. Louisville & Nashville R.R., 213 U.S. 175, 193
(1909); Hagans v. Lavine, 415 U.S. 528, 546–47 & n.12 (1974). In a
case removed from state court, presence of a claim barred by
the Eleventh Amendment does not destroy jurisdiction over non-
barred claims. Wisconsin Dep’t of Corrections v. Schacht, 524 U.S.
381 (1998). 

138
465 U.S. 89 (1984). 

139
Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110 (1828). 

140
E.g., Ford Motor Co. v. Department of the Treasury, 323 U.S. 459,
464 (1945). 

141

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In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a
consent decree regarding its state Medicaid program, attempted to
extend the reasoning of Pennhurst, arguing that unless an actual
violation of federal law had been found by a court, then such court
would be without jurisdiction to enforce such decree. The Court, in
a unanimous opinion, declined to so extend the Eleventh Amendment,
noting, among other things, that the principles of federalism were
served by giving state officials the latitude and discretion to
enter into enforceable consent decrees. Id. at 442. 

142
Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). See
also Old Colony Trust Co. v. Seattle, 271 U.S. 426
(1926). Worcester County remains viable. Cory v. White, 457 U.S. 85
(1982). The actions were under the Federal Interpleader Act, 49
Stat. 1096 (1936), 28 U.S.C. § 1335, under which other actions
against officials have been allowed. E.g., Treines v. Sunshine
Mining Co., 308 U.S. 66 (1939) (joinder of state court judge and
receiver in interpleader proceeding in which state had no interest
and neither judge nor receiver was enjoined by final decree). See
also Missouri v. Fiske, 290 U.S. 18 (1933). 

143
Smith v. Reeves, 178 U.S. 436 (1900). 

144
Atchison, T. & S. F. Ry. v. O’Connor, 223 U.S. 280 (1912). 

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145
322 U.S. 47 (1944). 

146
See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459
(1945); Kennecott Copper Corp. v. Tax Comm’n, 327 U.S. 573 (1946).
States may confine to their own courts suits to recover taxes.
Smith v. Reeves, 178 U.S. 436 (1900); Murray v. Wilson Distilling
Co., 213 U.S. 151 (1909); Chandler v. Dix, 194 U.S. 590 (1904). 

147
415 U.S. 651 (1974). 

148
415 U.S. at 663. 

149
415 U.S. at 667–68. Where the money at issue is not a state’s, but
a private party’s, then the distinction between retroactive and
prospective obligations is not important. In Verizon Md. Inc. v.
Public Serv. Comm’n of Md., 535 U.S. 635 (2002), the Court held
that a challenge to a state agency decision regarding a private
party’s past and future contractual liabilities does not violate
the Eleventh Amendment. Id. at 648. In fact, three judges
questioned whether the Eleventh Amendment is even implicated where

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there is a challenge to a state’s determination of liability
between private parties. Id. at 649 (Souter, J., concurring). 

150
415 U.S. at 668. See also Quern v. Jordan, 440 U.S. 332
(1979) (reaffirming Edelman, but holding that state officials could
be ordered to notify members of the class that had been denied
retroactive relief in that case that they might seek back benefits
by invoking state administrative procedures; the order did not
direct the payment but left it to state discretion to award
retroactive relief). But cf. Green v. Mansour, 474 U.S. 64 (1985).
“Notice relief ” permitted under Quern v. Jordan is consistent with
the Eleventh Amendment only insofar as it is ancillary to valid
prospective relief designed to prevent ongoing violations of
federal law. Thus, where Congress has changed the AFDC law and the
state is complying with the new law, an order to state officials to
notify claimants that past payments may have been inadequate
conflicts with the Eleventh Amendment. 

151
433 U.S. 267 (1977). 

152
433 U.S. at 289. 

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153
433 U.S. at 290 n.22. See also Hutto v. Finney, 437 U.S. 678, 690–
91 (1978) (affirming order to pay attorney’s fees out of state
treasury as an “ancillary” order because of state’s bad faith). 

154
478 U.S. 265 (1986). 

155
521 U.S. 261 (1997). 

156
521 U.S. at 281. 

157
521 U.S. at 284. 

158

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521 U.S. at 282. 

159
521 U.S. at 296. 

160
Virginia Office for Protection and Advocacy v. Stewart, 563 U.S.
___, No. 09–529, slip op. at 8 (2011) (quoting Pennhurst State
School & Hospital v. Halderman, 465 U.S. at 107). Federal law
offered states funding to improve services for the developmentally
disabled and mentally ill on condition that, inter alia, the states
designate a private or independent state entity to seek remedies
for incidents of neglect and abuse. Virginia was one of eight
states to establish a state entity to exercise this authority. 

161
In a concurring opinion, Justice Kennedy, joined by Justice Thomas,
continued to support a case-by-case balancing analysis. Virginia
Office for Protection and Advocacy v. Stewart, 563 U.S. ___, No.
09–529, slip op. (2011) (Kennedy, J., concurring). 

162
See, e.g., Florida Dep’t of State v. Treasure Salvors, 458 U.S.
670, 702 (1982) (dissenting opinion); Patsy v. Florida Board of
Regents, 457 U.S. 496, 520 (1982) (dissenting opinion). See

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also Employees of the Dep’t of Public Health and Welfare v.
Department of Public Health and Welfare, 411 U.S. 279 (1973). 

163
167 U.S. 204 (1897). 

164
106 U.S. 196 (1883). 

165
Johnson v. Lankford, 245 U.S. 541 (1918); Martin v. Lankford, 245
U.S. 547 (1918). 

166
416 U.S. 233 (1974). 

167

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These suits, like suits against local officials and municipal
corporations, are typically brought pursuant to 42 U.S.C. §
1983 and typically involve all the decisions respecting liability
and immunities thereunder. On the scope of immunity of federal
officials, see Article III, “Suits Against United States
Officials,” supra. 

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